United States v. William Glarner, III ( 2021 )

FILED
NOT FOR PUBLICATION
OCT 21 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50293
Plaintiff-Appellee, D.C. No.
8:19-cr-00065-DOC-1
v.
WILLIAM GLARNER III, AKA William MEMORANDUM*
Thomas Clarner, AKA William Thomas
Clarner III, AKA Bil Glarner, AKA Bill
Thomas Glarner III, AKA William
Glarner, Jr., AKA William Thoman
Glarner, AKA William Thomas Glarner
III, AKA William Thomas Glarner,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted October 7, 2021
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GRABER and CHRISTEN, Circuit Judges, and ZOUHARY,*** District
Judge.
William Glarner III appeals his jury conviction and sentence for attempting
to distribute 54.8 grams of methamphetamine, in violation of 21 U.S.C. §§ 846,
841; attempting to distribute 55.7 grams of methamphetamine, in violation of 21
U.S.C. §§ 846, 841; and possessing with intent to distribute 1,418 grams of
methamphetamine, in violation of 21 U.S.C. § 841. We review de novo a district
court’s ultimate legal conclusion as to whether a defendant has a protectable
privacy interest sufficient to challenge a search and seizure, and we review for
clear error the district court’s factual findings underlying its decision. United
States v. Gonzalez, Inc., 412 F.3d 1102, 1116 (9th Cir. 2005). A district court’s
formulation of jury instructions and application of the Sentencing Guidelines to the
facts of a case are reviewed for abuse of discretion. Peralta v. Dillard, 744 F.3d
1076, 1082 (9th Cir. 2014) (en banc); United States v. Gasca-Ruiz, 852 F.3d 1167,
1170 (9th Cir. 2017) (en banc). We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm. Because the parties are familiar with the facts, we do not
recite them here.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
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1. Glarner argues that he had standing to challenge the search of the
Audi. First, we note that the Supreme Court has “abandoned a separate inquiry
into a defendant’s ‘standing’ to contest an allegedly illegal search in favor of an
inquiry that focuse[s] directly on the substance of the defendant’s claim that he or
she possessed a ‘legitimate expectation of privacy’ in the area searched.” Rawlings
v. Kentucky, 448 U.S. 98, 104 (1980). Thus, to challenge the search of the Audi,
Glarner had only to show“[through] his conduct” that he enjoyed a “legitimate
expectation of privacy” in the Audi. Smith v. Maryland, 442 U.S. 735, 740 (1975)
(citation omitted). The government argued in the district court that Glarner’s
challenge to the search should be dismissed because he did not file a declaration
attesting to his interest in the Audi. But in oral argument before our court, the
government was not able to cite authority for the assertion that a declaration is
necessary, and we know of none.
Glarner established a reasonable expectation of privacy through the evidence
filed with his attorney’s declaration, including the Search Warrant Affidavit and
the Department of Homeland Security’s Report of Investigation. See United States
v. Freitas, 716 F.2d 1216, 1220 n.2 (9th Cir. 1983). The record shows that law
enforcement officers knew the Audi was registered to Glarner’s son and that
Glarner regularly drove it. They had seen Glarner drive the Audi on numerous
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occasions over the course of several months when they surveilled him, including
when he appeared to be shipping drugs for his son. The Audi was parked outside
Glarner’s residence when he was arrested, Glarner’s roommates confirmed that he
drove the car while living at his temporary residence, and Glarner gave the officers
access to the car when he was arrested. The record thus shows that Glarner
“lawfully possesse[d]” and “control[led” the Audi and enjoyed a “right to exclude
others” from it at the time of the search. See Byrd v. United States, 138 S. Ct.
1518, 1527 (2018) (quoting Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978)); see
also United States v. Portillo, 633 F.2d 1313, 1316-17 (9th Cir. 1980). The district
court therefore erred by holding that Glarner lacked “standing” to challenge the
search.
2. But we further conclude that the search of the Audi was supported by
probable cause. See United States v. Smith, 790 F.2d 789, 792 (9th Cir. 1986)
(“We may affirm on any ground fairly supported by the record.”). The search
warrant in this case relies on a number of facts, including: (1) Glarner’s use of the
Audi to travel to the post office and ship packages that were later discovered to
contain methamphetamine; (2) drug paraphernalia seized in trash bags outside
Glarner’s residence; and (3) experiential knowledge that drug traffickers often
store records of drug transactions in their vehicles. Based on the “totality of the
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circumstances,” the record supports the conclusion there was a “fair probability”
that evidence relating to drug trafficking would be found in the Audi. See Illinois
v. Gates, 462 U.S. 213, 238 (1983); United States v. Terry, 911 F.2d 272, 275 (9th
Cir. 1990). We therefore affirm the district court order denying motion to
suppress.
3. Glarner submits the district court improperly instructed the jury that it
need not find beyond a reasonable doubt that Glarner knew the substance was
methamphetamine, or that Glarner knew the quantities involved. However, in
United States v. Collazo, 984 F.3d 1308, 1315 (9th Cir. 2021) (en banc), we held
“[t]he government is not required to prove that the defendant knew (or had an
intent) with respect to the drug type and quantity set forth” under 21 U.S.C. § 841
and analogous drug statutes. . Glarner acknowledges that Collazo controls and
bars relief, and he raises this argument to preserve the issue for further review.
4. Finally, Glarner argues the district court erred by imposing a two-
level sentencing enhancement for mass marketing by means of an interactive
computer service because: (1) his son, Billy, did not engage in online commercial
conduct that qualifies as mass marketing; and (2) Billy’s use of the darknet was not
“relevant conduct” for the purposes of Glarner’s sentence because Glarner himself
never accessed the darknet. We disagree. The evidence established that Billy
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made over 1,500 drug sales by operating a vendor account on a darknet website, a
platform that was able to reach large numbers of people for purposes of conducting
illicit sales. The fact that Billy did not operate an entire website does not
undermine his active use of an interactive computer service. See United States v.
Hanny, 509 F.3d 916, 920 (8th Cir. 2007). Billy also admitted in his plea
agreement that the mass-marketing enhancement applied to his drug-trafficking
activities. Further, Billy’s use of the darknet was “relevant conduct” for the
purposes of Glarner’s sentence because Glarner actively participated in his son’s
drug trafficking scheme by packing drugs and shipping them to customers around
the country. The district court did not abuse its discretion by determining that
Glarner’s actions amounted to “jointly undertaken criminal activity” for purposes
of U.S.S.G. § 1B1.3(a)(1).
In summary, although the district court erred in ruling that Defendant lacked
“standing,” we affirm the conviction on the alternative ground that probable cause
supported the search warrant and also affirm the sentence.
AFFIRMED.
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