United States v. Gonzales ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2008
No. 07-51259
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RICARDO GONZALES
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-561-2
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Ricardo Gonzales entered a conditional guilty plea to one count of
conspiring to possess with intent to distribute five or more kilograms of cocaine
and one count of knowingly possessing a firearm in furtherance of a drug
trafficking crime. The district court sentenced Gonzales to ten years of
imprisonment for the drug trafficking charge to be followed by a consecutive
term of 60 months of imprisonment for the firearm charge. The district court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-51259
also imposed two concurrent five-year terms of supervised release. Gonzales
now appeals his conviction and sentence.
Following a joint Drug Enforcement Administration (DEA) and San
Antonio Police Department (SAPD) undercover narcotics investigation operation,
DEA agents and SAPD officers formed a reasonable suspicion that the vehicle
driven by Gonzales contained narcotics. During the operation, DEA agents and
SAPD officers communicated over the radio and by phone, and officials
requested that SAPD officers in a marked unit conduct a traffic stop. Gonzales
initially refused a request to search the vehicle, so a canine unit was called. A
drug dog alerted on the outside of the vehicle, and a subsequent search of the
inside of the vehicle resulted in the discovery of a black duffle bag containing 17
kilograms of cocaine. A Smith and Wesson 9mm semi-automatic pistol loaded
with twelve rounds was also found between the driver’s seat and the center
console.
Gonzales argues that the district court erred in denying his motion to
suppress the evidence because the arresting officers violated his Fourth
Amendment rights by illegally detaining him over the permissible length of
detention that is constitutionally allowed in conjunction with a traffic stop. It
is well settled that the Fourth Amendment permits warrantless searches of
automobiles where police officers have probable cause to believe that the vehicle
contains contraband or evidence of criminal activity. United States v. McSween,
53 F.3d 684, 686 (5th Cir. 1995). Under the collective knowledge doctrine, an
arresting officer does not have to have personal knowledge of all the facts
constituting probable cause as long as there is a certain level of communication
between the arresting officer and other officials who have knowledge of all of the
necessary facts. United States v. Ibarra, 493 F.3D 526, 530 (5th Cir. 2007). It
is immaterial to the length of detention that Gonzales’s vehicle was actually
stopped for speeding because the arresting officers received reliable information
from other officials who had probable cause to believe that the vehicle contained
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drugs. United States v. Khanalizadeh, 493 F.3d 479, 483 (5th Cir. 2007). The
district court did not err in denying Gonzales’s motion to suppress. See id.
Gonzales also argues that there was an insufficient factual basis to
support his guilty plea to possessing a firearm in furtherance of a drug
trafficking crime. A defendant possesses a firearm “‘in furtherance of’ the drug
trafficking offense when the possession furthers, advances, or helps forward that
offense.” United States v. Ceballos-Torres, 218 F.3d 409, 410-11 (5th Cir. 2000).
Proof that a weapon was used in relation to a drug trafficking offense merely
requires that the Government establish that the weapon was available to
provide protection in connection with the defendant’s involvement in the drug
trafficking offense. United States v. Smith, 481 F.3d 259, 264 (5th Cir. 2007).
During his plea hearing, Gonzales admitted that the vehicle contained a 9mm
semi-automatic pistol loaded with twelve rounds. The weapon was located
within close proximity of the narcotics and within Gonzales’s reach, and could
have easily been used for protection. Thus, Gonzales’s guilty plea was supported
by a sufficient factual basis. See Smith, 481 F.3d at 264.
Finally, Gonzales asserts that the denial of a safety valve reduction
constitutes multiple punishments for the same offense in violation of the Fifth
Amendment. We do not address Gonzales’s sentencing issue because the written
plea agreement contains a valid waiver of the right to appeal the sentence except
in cases of alleged ineffective assistance of counsel or prosecutorial misconduct.
See United States v. Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002). Gonzales does
not raise either of these issues, nor does he allege that the Government breached
the plea agreement.
Accordingly, the judgment of the district court is AFFIRMED.
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