United States v. Felis Romo , 652 F. App'x 534 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30227
Plaintiff - Appellee, D.C. No. 1:13-cr-00113-SPW-1
v.
MEMORANDUM*
FELIS LUSIANO ROMO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted June 8, 2016**
Seattle, Washington
Before: PAEZ, BYBEE, and CHRISTEN, Circuit Judges.
Felis Romo appeals his jury conviction and sentence for conspiracy to
possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846,
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 841(a)(1), and felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not err by denying Romo’s motion to suppress.
Romo argues that, absent the officers’ illegal entry into the camper where he was
staying and their decision to seize him, the officers would have lacked probable
cause for the search warrant that led to discovery of the evidence he now seeks to
suppress. But the officers’ entry and resulting seizure of Romo were reasonable
for two reasons. First, the officers were serving arrest warrants for people they
knew lived on the property, and an arrest warrant “implicitly carries with it the
limited authority to enter a dwelling in which the suspect lives when there is reason
to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980).
When officers sought to enter the camper, only one of the people subject to arrest
had been located, and officers knew someone was in the camper. Moreover, once
officers discovered Romo, they acted reasonably by detaining him for their safety
and to identify him. See United States v. Christian, 356 F.3d 1103, 1106–07 (9th
Cir. 2004).
Second, officers could reasonably have thought the camper harbored
someone who posed a danger, justifying a protective sweep under Maryland v.
Buie, 494 U.S. 325 (1990). It was apparent that someone was in the camper, the
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property was known to harbor drug dealers, and the officers had announced
themselves and arrested people on the property. Under these circumstances, an
officer could reasonably believe that the person in the camper posed a danger. See
United States v. Hoyos, 892 F.2d 1387, 1396 (9th Cir. 1989) (officers reasonably
feared for their safety from individuals hiding in a house thought to harbor drug
dealers when officers had announced themselves and arrested someone outside the
house), overruled on other grounds by United States v. Ruiz, 257 F.3d 1030 (9th
Cir. 2001); see also United States v. Arellano-Ochoa, 461 F.3d 1142, 1146 (9th
Cir. 2006) (defendant’s furtive movements and hiding behind a door made it
reasonable for officers to conclude there was a likelihood of danger to themselves).
2. The district court did not abuse its discretion by assigning two criminal
history points based on Romo’s prior conviction. See United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc) (“The abuse of discretion standard applies
to all sentencing decisions . . . .”). First, the district court was permitted to rely on
the NCIC computerized criminal history records. See United States v.
Marin-Cuevas, 147 F.3d 889, 895 (9th Cir. 1998). Second, the district court did
not abuse its discretion by relying on the NCIC records instead of the sheriff’s
records. The Probation Officer explained that the NCIC records reflect actual
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court records, she considered the NCIC records to be a more reliable indicator of
the conviction, and it was her practice to rely on those records.
AFFIRMED.
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