United States v. Jose Renderos , 633 F. App'x 377 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 9 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 14-50032, 14-50071
Plaintiff-Appellee, DC Nos. 2:13-cr-00102-ABC-1
& 5:07-cr-00042-VAP-1
v.
JOSE ROLANDO RENDEROS, aka MEMORANDUM*
Eduardo Rodriguez
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Argued and Submitted October 20, 2015
Pasadena, California
Before: PREGERSON, CALLAHAN, Circuit Judges and BASTIAN, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
Jose Rolando Renderos appeals his convictions on seven counts of access
device fraud, one count of trafficking in counterfeit goods, and one count of
aggravated identity theft. He contends evidence used at trial was obtained in
violation of the Fourth Amendment and that a faulty jury instruction deprived him
of his due process right to a fair trial. He also appeals a supervised release
revocation premised on these instant convictions. We affirm.
Whether a jury instruction was an accurate statement of law is reviewed de
novo. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). This Court
reviews the denial of a motion to suppress de novo, while reviewing the district
court’s underlying factual findings for clear error. United States v. Giberson, 527
F.3d 882, 886 (9th Cir. 2008). A district court’s decision to revoke a term of
supervised release is reviewed for abuse of discretion. United States v. Harvey, 659
F.3d 1272, 1274 (9th Cir. 2011).
I. Jury Instruction
Defendant appeals his conviction for one count of aggravated identity theft
under 18 U.S.C. § 1028A. This conviction carries a mandatory twenty-four-month
sentence to run consecutive to any other sentence. Defendant argued that the court
provided jurors with a faulty jury instruction because the instruction did not require
the jury to find he used another person’s identity without that person’s permission.
After briefing was completed, this Court decided United States v. Osuna-Alvarez,
which is controlling here. 788 F.3d 1183 (9th Cir. 2015). In Osuna-Alvarez, we
held that “despite its title, § 1028A does not require theft as an element of the
offense.” Id. at 1185. Accordingly, the district court’s jury instruction concerning
§ 1028A was an accurate statement of the law.
II. Search of the Storage Unit
Defendant also challenges evidence admitted at trial that was found during a
search of a storage unit. The search was conducted pursuant to a search warrant
obtained—in part—based on evidence viewed through an opening from an empty
adjacent unit and a shared hallway. An individual tenant does not have a legitimate
reasonable expectation of privacy in a hallway shared by many others, even if the
hallway is secured with locks or key-codes. United States v. Nohara, 3 F.3d 1239,
1241-42 (9th Cir. 1993) (holding that a tenant does not have an objective
reasonable expectation of privacy in a shared hallway of a secure apartment
building). Investigators were lawfully in the hallway and empty unit with the
storage facility’s permission. Accordingly, the investigators' observation of
materials within Defendant’s storage unit from the adjacent unit and hallway did
not require a warrant because the items were in plain view. Horton v. California,
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496 U.S. 128, 134-37 (1990); United States v. Stafford, 416 F.3d 1068, 1076 (9th
Cir. 2005). Thus, the evidence from Defendant’s storage unit was properly
admitted at trial.
III. Search of the Silver Van
Defendant also appeals the denial of his motion to suppress the evidence
seized from the silver van he was driving. Defendant maintains the search of the
van was not pursuant to the anticipatory warrant and that no exception to the
warrant requirement applied. The district court was correct in determining that the
warrant was executed properly.
Defendant argues the anticipatory warrant strictly limited any search to the
location where the package was first opened and the agents did not know where the
package was actually first opened.
The anticipatory warrant’s triggering clause states:
The triggering event to activate this anticipatory search warrant
and permit its execution is once the beeper device alert [sic] agents, or
the agents otherwise determine, that the SUBJECT PACKAGE has
been opened (whether at the ADDRESSEE PREMISES or at another
location), at that point and with the warrant sought by this affidavit,
agents will execute this warrant and enter the relevant SUBJECT
DELIVERY LOCATION to search for and seize the SUBJECT
PACKAGE and the other items . . . .
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In turn, the Subject Delivery Location is “strictly limited to the location in
which the triggering event occurs . . . .” Because the triggering event occurs either
when the package was actually opened, or when agents otherwise determine the
package has been opened, the Subject Delivery Location may not necessarily be
the location the package was initially opened. In its order denying the motion to
suppress, the district court found that an agent determined the package was opened
when he looked through the window of the silver van. This finding may only be
reversed upon a showing of clear error—a showing Defendant has not made.
Instead, Defendant continues to rely on his facially incorrect reading of the
anticipatory warrant. Accordingly, the triggering clause was met and agents had
lawful authority to conduct a search of the van pursuant to the warrant. Thus,
Defendant’s motion to suppress was properly denied and evidence obtained from
the van was properly admitted.
IV. Supervised Release Violation
Because we affirm Defendant’s underlying convictions, we also affirm the
corresponding revocation of supervised release based on the convictions.
AFFIRMED.
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