United States v. Villanueva

FILED
United States Court of Appeals
Tenth Circuit
May 2, 2016
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-6081
FLORENTINO VILLANUEVA, JR.,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:13-CR-00201-HE-1)
David Autry of Oklahoma City, Oklahoma, for Defendant-Appellant.
Mark R. Stoneman, Special Assistant U.S. Attorney (Sanford C. Coats, United
States Attorney, with him on the brief), of Lawton, Oklahoma, for Plaintiff-
Appellee.
Before LUCERO, SEYMOUR, and GORSUCH, Circuit Judges.
SEYMOUR, Circuit Judge.
Following the execution of a search warrant, Florentino Villanueva, Jr.,
was charged with one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court denied his motion to
suppress the firearm seized during the search. Mr. Villanueva entered a
conditional plea of guilty pursuant to a written plea agreement, reserving the right
to appeal the denial of his motion to suppress and any sentencing enhancement
the district court might impose under the Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e)(1). The district court overruled Mr. Villanueva’s objections at
sentencing, classified him as an armed career criminal, and sentenced him to 210
months imprisonment. We affirm.
FACTS AND PROCEDURAL HISTORY
A. The Affidavit for Search Warrant
Based on information obtained during an investigation into on-going
methamphetamine trafficking, Agent Seth Thompson of the Oklahoma Bureau of
Narcotics and Dangerous Drugs (OBNDD) applied for and received a no-knock
warrant to search a residence in Lawton, Oklahoma. Agent Thompson asserted
there was probable cause to believe that Mr. Villanueva used the residence to run
a suspected methamphetamine drug conspiracy. The residence “had belonged to
Mr. Villaneuva’s deceased grandfather and was left to his two sons, one of whom
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was Mr. Villaneuva’s stepfather.” 1 Aplt. Br. at 9. After laying out his training
and experience as a narcotics agent and explaining the common practices of drug
distributors and traffickers, Agent Thompson set forth the following information
about Mr. Villanueva’s alleged drug trafficking conspiracy obtained through
wiretaps and surveillance of Mr. Villanueva and of several of his alleged
co-conspirators 2 and others close to him.
On September 11, 2012, OBNDD agents intercepted cell phone
communications via wiretaps suggesting Mr. Villanueva issued orders to co-
conspirators as the leader of a drug hierarchy in which other individuals carried
out his orders. Cell phone communications intercepted on September 20, 2012,
showed co-conspirators Hinson and Martinez discussing their belief that Hinson
was under police surveillance and that Mr. Villanueva, referred to in this
conversation by one of his aliases, “G-B,” wanted Hinson to stop the alleged drug
activity and possibly no longer show up at All-Star Automotive, an auto repair
1
As Agent Thompson noted in the probable cause affidavit, the house is
listed as formerly owned by Thayer Eugene Bizzell, now deceased, survived by
two sons, one of whom is Charles Bizzell, married to Mr. Villanueva’s mother,
Mary Bizzell. Comanche County Clerk’s records show the home was distributed
in a probate case to Thayer’s two sons, Michael and Charles Bizzell.
2
Agent Thompson gathered information about numerous co-conspirators
but three specific ones – Frederick Martinez, Jimmy Hinson, and Mr.
Villanueva’s brother, David Villanueva – most frequently appear in the affidavit
in connection with Mr. Villanueva. The affidavit lists many other individuals
suspected of conspiracy to distribute drugs, but only information related to Mr.
Villanueva’s conviction is relevant here.
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shop co-owned and operated by Mr. Villanueva. The co-conspirators also
discussed how to reassign Hinson’s customer base to new locations for further
drug sales, and how to get money from drug sales to Mr. Villanueva because
Hinson owed “ten-fifty,” or $1,050.00, to Mr. Villanueva. Rec., vol. I at 139.
Additionally, on September 21, 2012, during the same surveillance session,
Hinson turned down a deal to sell forty dollars worth of methamphetamine,
stating that he had been “cut off,” allegedly by Mr. Villanueva, and that “the
police are all over me.” Id. at 139.
On September, 24, 2012, co-conspirators discussed whether Mr.
Villanueva, referred to in this conversation as the “big fella,” 3 had given Hinson
permission to resume selling methamphetamine. On October 9, 2012, Mr.
Villanueva had a telephone conversation with Martinez in which they determined
Martinez owed him “thirty three,” or $3,300.00, allegedly for methamphetamine.
Id. at 141. Later that night, Mr. Villanueva called Martinez and instructed him to
prepare two bags of meth – one with 14 grams and the other with 4 grams – to be
ready by around 9:30 p.m. He also told Martinez that he had “three-forty for
[him] to pick up from Satan,” indicating that Mr. Villanueva had $340.00 worth
of methamphetamine from Satan, referred to in the affidavit as co-conspirator
3
The affidavit noted that “big fella” was a reference to Mr. Villanueva’s
physical appearance as well as one of his aliases, “Gordo,” which according to the
affidavit “is the Spanish word for fat.” Rec., vol. at 50, 140.
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Seth Speed. 4 Id.
Roughly thirty minutes later, Mr. Villanueva called Martinez and told him
that the four-gram bag would be ready in an hour and a half, and the fourteen-
gram bag would be ready around 11:00 p.m. At around 11:15 p.m., Mr.
Villanueva called Martinez and told him to come over to his house and grab his
phone because he was having trouble staying awake and the woman would not be
able to pick up the drugs until 11:30 p.m. Martinez said he would be there
shortly, and nine minutes later he called Mr. Villanueva, stating: “I’m at the front
door.” Id. at 142. At this time, global position data (ping data) from Martinez’s
phone showed that he was located at Mr. Villaneuva’s stepfather’s residence, the
house subsequently searched.
A series of conversations outlined in the affidavit took place later that same
night between Mr. Villanueva and Martinez, in which Mr. Villanueva specifically
coordinated two drug sales over the phone by speaking to both Martinez and the
customers while giving Martinez instructions on how to distribute the
methamphetamine. During those cell phone calls, Mr. Villanueva instructed
Martinez to make two drug deals at a McDonald’s, one with a white trailblazer,
4
Agent Thompson noted in the affidavit that “this statement further
evidences the nature of this conversation when” considered in the context of a call
recorded by police occurring twenty-seven minutes after the call from Mr.
Villanueva to Martinez in which Speed told Martinez that he gave G-B “three
forty” and Martinez told Speed that he didn’t think G-B knew Martinez was
fronting methamphetamine to Speed.
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and one with “a Mexican chick” described as “Flacco’s sister” who drove a “gray
Mazda 6.” Id. at 143. In a subsequent phone conversation, Mr. Martinez told Mr.
Villanueva, “Mission accomplished” and added, “She gave me some feria
(money). She said it was a rack. So we wrapped it up.” 5 Id. Mr. Villanueva
then told Martinez, “Hold on to it, and I’ll see you tomorrow.” Id.
On October 13, 2012, Martinez received a call from David Villanueva, Mr.
Villanueva’s brother, concerning the preparation of methamphetamine. David
told him that Mr. Villanueva, referred to as “Gordo” in this conversation, wanted
Martinez to “get on top of that chop suey you make,” and to “snatch up ‘Little C’
if you need to, at the shop, and y’all go chop.” Id. at 145. The affidavit points
out that “cutting,” “chopping,” and the phrase “get on top of that chop suey,” are
all slang terms used for preparing methamphetamine. Id. at 145-46. In a phone
conversation thirty-six minutes later, Mr. Villanueva asked Martinez if he had
talked to “Little C” yet, and Martinez said he hadn’t but he was going to “hit up
Little C, so we can go take care of that.” Id. According to phone wiretaps,
Martinez then called Little C, also known as Colten Payton, to ask if he was busy
because Martinez needed Little C to help him if he had time. Id. About an hour
after this call, Martinez spoke with his brother and asked him to come “cut the
5
The affidavit has a section listing key words allegedly used by the drug
trafficking conspiracy run by Mr. Villanueva, including “Fatia,” “Fierja,”
“Bread,” and “Rack,” which according to Agent Thompson all translate to
“Money.” Rec., vol. 1 at 81.
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tree down” at their dad’s house, and then Martinez stated: “Yea, we got all them
little wild onions and shit that are growing down there, and I gotta pull them up,”
and “see if they’re any good.” Id. “[T]he word ‘onion’ is a term used in the drug
community to refer to one ounce of illegal drugs.” Id. at 146. That same night,
David Villanueva told Martinez on the phone that he and Mr. Villanueva, “G-B,”
were at “grandpa’s house,” 6 and that Mr. Villanueva might pass out. Martinez
said he would pick up David if he needed a ride. Although no further cell phone
communication took place between David Villanueva and Martinez that night,
ping cell phone data showed that Martinez’s phone was within five meters of
“grandpa’s house” in Lawton at 10:25 p.m.
On October 16, 2012, additional intercepted wiretap communications
clearly showed Martinez speaking to an unknown male about the fact that he
owed “G-B” “seventeen-fifty,” or $1,750.00, and Mr. Villanueva can be heard in
the background during the call telling Martinez to tell the unknown male where to
meet Martinez to give him the money for Mr. Villanueva.
Finally, throughout the month of January 2013, agents observed several
vehicles owned by individuals associated with Mr. Villanueva, including his wife
and girlfriend, parked at the residence in question. Agent Thompson also
6
Again, the reference to grandpa’s house connects Mr. Villanueva to the
residence eventually searched. The County records, see n.1, supra, confirmed the
statement made by David Villanueva telling Martinez that he and “G-B” were at
“grandpa’s house.” Rec., vol. 1 at 52.
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observed Mr. Villanueva driving his wife’s vehicle during wiretaps and saw it
parked outside of his auto repair shop, All-Star Automotive. In summary, Agent
Thompson explained:
The approximately seventeen (17) days of telephone interception
conducted by OBNDD on Martinez’s two (2) telephones produced
collectively 646 calls/communications relevant to the offense under
investigation. These two (2) wiretaps, as well as a previous wiretap
involving the phone of one of Martinez’s sub-distributors, Jimmie
Hinson (which produced 1,735 calls/communications relevant to the
offense under investigation), identified in excess of thirty (30)
individuals being involved with Mr. Villanueva’s methamphetamine
distribution organization. The totality of this investigation has
confirmed that a conspiratorial network has existed for a number of
years, and this network has distributed methamphetamine in the
Comanche County area. As described herein, including attachments,
the residence . . . is used by Mr. Villanueva as one of his residences.
As previously stated, drug distributors often use their residences to
store document and/or paraphernalia equipment evidence indicative
of their involvement in the illegal drug trade.
Rec., vol. 1 at 55.
B. The Search Warrant
On January 30, 2013, Oklahoma state court Judge Keith Byron Aycock
issued a no-knock search warrant for “grandpa’s house,” the residence owned by
Mr. Villaneuva’s stepfather. The warrant authorized the search for “books,
records, documents, contraband and paraphernalia evidencing the business of
illegal drug distribution and laundering profits from this enterprise.” 7 Id. at 201.
7
Attachment B set forth an extensive list of documents to be searched for,
including bank records, cash receipts, telephones records, emails, stored
(continued...)
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Agents executed the search warrant at the residence in Lawton, Oklahoma, on
February 1, 2013, and seized, among other things, a loaded Springfield Model XD
.40 caliber firearm in the master bedroom.
C. Court Proceedings
A federal grand jury indicted Mr. Villanueva on one count of being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Mr. Villanueva
filed a motion to suppress evidence seized during the search, contending that
Judge Aycock was not a neutral and detached magistrate when he issued the
search warrant; that the warrant was not supported by probable cause, did not
meet the particularity requirement, and was improperly executed; and that the
good faith exception did not preclude excluding the evidence. The district court
held a suppression hearing in which Mr. Villanueva called one witness, Clay
Hillis, who had represented Mr. Villanueva on four previous occasions and who
had also represented Mr. Villanueva’s son in a paternity case. Mr. Hillis testified
that the judge assigned to the paternity case was Judge Aycock. Mr. Hillis told
the opposing attorney in the paternity case that he intended to move to have Judge
Aycock recused because he was concerned the judge “had either prosecuted [Mr.
7
(...continued)
electronic communications between co-conspirators, investment records owned by
Mr. Villanueva or All-Star Automotive, as well as computer storage devices,
business and financial documents, cash, drug paraphernalia and other evidence
concerning the production, packaging, and distribution of any illegal narcotics.
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Villanueva] directly himself, or that he was part of a district attorney’s office that
had prosecuted him.” 8 Rec., vol. 3 at 7. Instead, Mr. Hillis explained, both he
and opposing counsel jointly asked Judge Aycock to recuse and “he said he would
recuse.” Id. “It was a pretty easy deal,” Mr. Hillis added, but noted he wasn’t
“positive” if Judge Aycock set forth his reasons for disqualifying himself from
handling the case. Id.
On cross-examination, Mr. Hillis answered “no” when asked whether Judge
Aycock ever explicitly stated “that he was not able to act as a neutral detached
judge in the case in which [Mr. Hillis] represented [Mr. Villanueva’s] son?” Id.
at 10. He also acknowledged that Judge Aycock did not serve an active role in
the investigation in the present case, that he was not an agent for the Oklahoma
Bureau of Narcotics, that he did not actually search the house at issue, that to his
knowledge Judge Aycock was not biased in any way, and that he did not rubber
stamp the warrant. Id. Mr. Hillis agreed when questioned that Judge Aycock did
not act improperly in any way when he determined probable cause existed to issue
the search warrant.
Mr. Villanueva made an offer of proof that if he were allowed to testify,
[h]e would state consistent with what’s alleged in the motion
respecting whether or not Judge Aycock was a neutral and detached
8
Judge Aycock worked as an assistant district attorney for the Comanche
County district attorney’s office and had represented the state against Mr.
Villanueva when he pled guilty to distribution of marijuana in 1996.
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magistrate, that in a 2001 felony case in Comanche County in which
he was the defendant and was represented by an attorney named Ken
Sue Doerfl in Lawton, Judge Aycock refused to accept a plea
agreement and told Mr. Villanueva that he was tired of seeing him in
his Court. And when Mr. Villanueva said that sounds like a conflict
of interest, at some point later in the proceedings the case was
transferred from Judge Aycock to Judge McCall in Comanche
County.
Rec., vol. 3 at 12. Mr. Villanueva argued at the suppression hearing that at least
it appeared Judge Aycock “felt that he couldn’t even be fair and impartial” for
prosecuting Mr. Villanueva in a prior case, and that he could not be a neutral and
detached magistrate. Id. at 14.
The district court was not persuaded Mr. Villaneuva had established Judge
Aycock’s lack of neutrality. The court explained:
I base that on a couple of things. One is, I think there is no
suggestion from Mr. Hillis or anybody else that the judge somehow
handled the affidavit improperly or acted in some procedurally
improper way with respect to it. There is no suggestion that he
considered matters outside the affidavit unless there’s some inference
to be drawn from these earlier circumstances that counsel has
referred to. And it seems to me that those circumstances that have
been identified are not sufficient to suggest to me that there was a
reason to question the judge’s neutrality.
Id. at 15.
The court then determined that the affidavit for the warrant established
probable cause to search the residence at issue:
[T]here is substantial evidence that was submitted to the judge to
indicate that the defendant was involved in an ongoing course of
criminal conduct involving illegal drug dealing. The circumstances
were laid out in some detail showing the defendant’s presence at the
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particular residence on multiple occasions over an extended period. I
recognize that the particular residence that was searched here didn’t
belong to the defendant, but I think the evidence that was submitted
as to the family relationships and the defendant’s presence there on
multiple occasions, the multiple instances, in fact, it appeared to be
more or less continuous over a period of several days that the
defendant’s wife or girlfriend or other family members were there,
suggesting the use of that residence by him on a regular basis
notwithstanding the fact that he didn’t own it.
All of that, against the backdrop of the circumstances that are
indicated in the affidavit it seems to me are sufficient to make out a
substantial basis for the judgment that probable cause to search the
residence was present here.
I recognize that some of the evidence that was submitted, that
there is a potential staleness issue here where some of the instances
and evidence that was presented were at least two or three months
old. But I think the cases recognize that when you’re dealing with
what’s essentially an ongoing extended pattern of illegal activity, or
where there is evidence of that, that the staleness consideration
becomes somewhat less compelling than it would otherwise be. And
in any event, as I say, it, in my view, does not undercut the
conclusion that there was a substantial basis for the state judge’s
determination.
Rec., vol. 3 at 18-19.
The district court also addressed the good faith exception to application of
the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984),
noting that none of the situations where the good faith exception was inapplicable
were present. The court explained that nothing suggested “there was false
information presented to the judge” or any “improper conduct on the judge’s part
that would have been known to a police officer,” and that there was nothing in the
circumstances relating to the warrant that “would have caused a reasonable police
officer to have any reason to doubt the validity of it.” Id. at 20. The court
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therefore concluded the good faith exception was an alternate basis for denying
the motion.
After the district court denied the motion to suppress, the government filed
a notice regarding the applicability of ACCA’s sentencing enhancement under 18
U.S.C. § 924(e)(1). Mr. Villanueva then waived his right to trial and entered a
conditional plea of guilty, reserving his right to appeal the district court’s order
denying his motion to suppress and any imposition of a sentencing enhancement
under ACCA.
At sentencing, Mr. Villanueva objected specifically to one of the three prior
convictions alleged in support of the ACCA enhancement, distribution of
marijuana, although he admitted that his objection to whether such distribution
was a serious drug offense under ACCA was made only “in the event [that] the
law were to change somehow in the future.” Rec., vol. 3 at 63. He also argued
that the ACCA enhancement violated the Sixth Amendment because the prior
predicate convictions used to enhance his sentence were not submitted to a jury
and proven beyond a reasonable doubt, but he admitted this was “a constitutional
objection based on a potential change in the law in the future.” Id. at 64.
The district court overruled all of Mr. Villanueva’s objections, adopted the
findings in the PSR, and determined the guideline range to be 180 to 210 months
in light of Mr. Villanueva’s designation as an armed career criminal. The court
sentenced Mr. Villanueva to 210 months imprisonment. This appeal followed.
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DISCUSSION
“‘In reviewing the district court’s denial of a motion to suppress, we review
the court’s factual findings for clear error and view the evidence in the light most
favorable to the government.’” United States v. Hunter, 663 F.3d 1136, 1141
(10th Cir. 2011) (quoting United States v. Worthon, 520 F.3d 1173, 1178 (10th
Cir. 2008)). “The credibility of witnesses, the weight to be given evidence, and
the reasonable inferences drawn from the evidence fall within the province of the
district court.” United States v. Campbell, 603 F.3d 1218, 1225 (10th Cir. 2010)
(quoting United States v McKissick, 204 F.3d 1282, 1296 (10th Cir. 2000)).
However, “[d]eterminations relating to the sufficiency of a search warrant and the
applicability of the good-faith exception are conclusions of law” that we review
de novo. United States v. Roach, 582 F.3d 1192, 1200 (10th Cir. 2009) (quoting
United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir. 2000)).
Mr. Villanueva challenges the validity of the warrant on multiple theories.
He argues (1) that the warrant was not issued by a neutral and detached
magistrate; (2) that the documents relied on for the search warrant failed to
establish probable cause because there was no showing of a nexus between the
items sought and the residence searched and the information relied on to establish
probable cause was stale; and (3) that the warrant authorized a general search.
Mr. Villanueva alternatively contends the Leon good faith exception to the
exclusionary rule does not apply because (1) “it was not issued by a neutral and
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detached magistrate”; (2) “the warrant was so obviously based on speculation,
surmise, cramped interpretations and inferences” it was devoid of factual support;
and (3) the warrant was fatally deficient in failing to particularize the things to be
seized and in its execution. Aplt. Br. at 34-35.
A. Neutral and Detached Magistrate
Mr. Villanueva first contends the search warrant was not issued by a
neutral and detached magistrate, as shown by the fact that the issuing state court
judge had previously prosecuted Mr. Villanueva, had refused to accept Mr.
Villanueva’s negotiated plea in a prior case, and had recused himself in a
paternity case involving Mr. Villanueva’s son. Because Leon allows us to turn
directly to the good faith issue without first considering the validity of the
warrant, 468 U.S. at 924, we decline to address defendant’s argument on the
merits and turn instead to a consideration of the officers’ good faith.
The Leon good faith exception is normally applied in situations where a
warrant lacked probable cause or failed the Fourth Amendment’s particularity
requirement. See, e.g., Leon, 468 U.S. at 922 (creating good faith exception to
exclusionary rule for evidence obtained by officers acting in reasonable reliance
on search warrant later found to lack probable cause); Roach, 582 F.3d at 1203-05
(applying Leon good faith exception to save warrant that lacked probable cause);
Massachusetts v. Sheppard, 468 U.S. 981, 987-88 (1984) (extending Leon good
faith exception to save evidence obtained under warrant that did not particularly
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describe items to be seized); United States v. Potts, 586 F.3d 823, 831-35 (10th
Cir. 2009) (electing to bypass question whether warrant met particularity
requirement because evidence admissible under Leon). This case calls for us to
apply Leon where the judge who issued the search warrant was arguably not
neutral and detached. 9 Although we are unaware of any court applying the good
faith exception in such circumstances, it is apparent from Leon itself that the good
faith exception is applicable in this situation.
First, Leon makes clear that “[p]enalizing the officer for the magistrate’s
error . . . cannot logically contribute to the deterrence of Fourth Amendment
violations.” 468 U.S. at 921. Just as an “officer cannot be expected to question
the magistrate’s probable-cause determination,” id., neither can he be expected to
question the magistrate’s neutrality when there is no outward appearance of any
impropriety. Mr. Villanueva does not set forth any evidence or argument that
Agent Thompson could have, or should have, reasonably known about any alleged
bias the issuing judge might have had against Mr. Villanueva. And certainly
nothing in the warrant itself could have placed a reasonable officer executing the
warrant on notice that the issuing judge was not neutral and detached.
Second, Leon states that the good faith exception in the context of whether
the issuing magistrate was neutral and detached is inapplicable only when the
9
We express no opinion as to whether Judge Aycock was neutral and
detached when he issued the warrant.
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“issuing magistrate wholly abandon[s] his judicial role in the manner condemned
in Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979).” 468 U.S. at 923. In Lo-Ji
Sales, the Court held a search warrant invalid because the town justice issued an
open-ended warrant to search an adult bookstore, which was believed to be
violating state obscenity laws, and accompanied the police officers to the store to
make probable cause determinations on the scene. 442 U.S. at 321-22. The Court
held that the town justice had “allowed himself to become a member, if not the
leader of a search party which was essentially a police operation.” Id. at 327.
Lo-Ji Sales thus stands for the proposition that a magistrate “wholly abandons his
role” when he aides law enforcement officers in their investigation of a crime.
Mr. Villanueva does not even argue that the state court judge who issued the
warrant in this case abandoned his judicial role. Accordingly, even assuming the
issuing magistrate was not neutral and detached and that he should have recused
himself from issuing the warrant, we reject Mr. Villanueva’s argument that the
Leon good faith exception does not apply to support the district court’s denial of
the motion to suppress.
B. Probable Cause Issues
Mr. Villanueva next claims that the warrant was not supported by probable
cause because it raised only a mere suspicion of his involvement in a drug
conspiracy, there was no showing of a nexus between the items sought and the
residence searched, and the information relied on for the warrant was stale.
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A judge’s probable cause determination is generally afforded great
deference. Illinois v. Gates, 462 U.S. 213, 236 (1983). But this deference
presupposes that “the magistrate judge’s ‘neutral and detached function’ has been
properly fulfilled.” United States v. Biglow, 562 F.3d 1272, 1281 (10th Cir.
2009) (quoting Gates, 462 U.S. at 236, 240). Because we have not decided
whether the issuing judge here was neutral and detached, we turn directly to a
consideration of the officers’ good faith reliance on the warrant.
Leon explained that an officer cannot be said to manifest objective good
faith if he relies “on a warrant based on an affidavit ‘so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable.’”
468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)). “When
an officer searches pursuant to a warrant, Leon generally requires we presume the
officer acted in good-faith reliance upon the warrant.” Campbell, 603 F.3d at
1225. The officer’s “reliance is only ‘entirely unreasonable’ when the affidavit is
‘devoid of factual support.’” Id. at 1230 (quoting United States v. Henderson, 595
F.3d 1198, 1201-02 (10th Cir. 2010)). Mr. Villanueva argues that this is the case
here.
“An affidavit is not devoid of factual support if it establishe[s] a minimally
sufficient nexus between the illegal activity and the place to be searched.” Id. at
1231 (quotation marks omitted). An affidavit meets this “minimal nexus”
requirement when it “‘describes circumstances which would warrant a person of
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reasonable caution’ in the belief that the ‘articles sought’ are in a particular
place.” Biglow, 562 F.3d at 1279 (quoting United States v. $149,442.43 in U.S.
Currency, 965 F.2d 868, 874 (10th Cir. 1992)). Our decision in Roach, 582 F.3d
at 1202-03, is particularly instructive. There, we held the affidavit failed to set
forth sufficient facts to establish probable cause to believe the defendant resided
at the location to be searched. Nevertheless, we applied the Leon good faith rule
to uphold the search because the affidavit set forth enough language indicating
the officers used at least one investigative technique to “provide a ‘minimal
nexus’ connecting Roach to the address.” Id. at 1204. We held it was not
“entirely unreasonable, therefore, for officers executing the warrant to rely on the
magistrates authorization of it” since it was “not a ‘bare bones’ affidavit of the
sort disapproved in Leon.” Id.
Contrary to Mr. Villaneuva’s contention, the affidavit here is “not so
facially deficient or so lacking in indicia of probable cause that the officer’s
reliance on the warrant in conducting the search was objectively unreasonable.”
United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998). The affidavit set
forth wiretap communications demonstrating Mr. Villanueva’s involvement in on-
going distribution of narcotics and his use of others to carry out his orders. The
affidavit linked his utilization of the family residence using ping data from Mr.
Villanueva’s and other co-conspirators’ phones, which placed them at the
residence while discussing criminal activity. During surveillance, officers
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observed vehicles connected to Mr. Villanueva’s family and girlfriend at the
residence. These facts provided a minimal nexus connecting Mr. Villanueva to
the residence and to possible contraband to be found there.
Although the affidavit here sought to search a residence that was suspected
of being used by Mr. Villanueva for drug distribution but not owned by him,
Agent Thompson relied on information connecting Mr. Villanueva, his co-
conspirators, his wife, and his girlfriend to the house, which was owned by Mr.
Villaneuva’s stepfather. “It is undisputed that ‘a law enforcement agent’s
opinion, based upon his professional expertise, that evidence of illegal activity
will be found in the place to be searched, is entitled to consideration in our
determination of whether probable cause existed at the time a warrant issued.’”
United States v. Harrison, 566 F.3d 1254, 1256 (10th Cir. 2009) (quoting United
States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004)). Agent Thompson
presented numerous facts and his own opinion, based on his extensive training,
which more than met the “minimal nexus” requirement. Campbell, 603 F.3d at
1231.
Mr. Villanueva also argues that the information used to support the
issuance of the search warrant was stale because the search and arrest warrant
affidavits used events from October 2012 to tie drug activity to the Lawton
residence, but the house was not searched until January 2013. “[P]robable cause
to search cannot be based on stale information that no longer suggests that the
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items sought will be found in the place to be searched.” Roach, 582 F.3d at 1201
(alteration in original) (quoting Mathis, 357 F.3d at 1206-07). As we recognized
in Mathis, however, “whether information is too stale to establish probable cause
depends on the nature of the criminal activity, the length of the activity, and the
nature of the property to be seized.” 357 F.3d at 1207 (quoting United States v.
Snow, 919 F.2d 1458, 1460 (10th Cir. 1990)). We noted that Mathis’ continuous
and ongoing drug activity undermined the claim of staleness.
As in Campbell, “[w]e need not decide whether the affidavit’s information
on [Mr. Villanueva] was so stale as to not support probable cause because we
conclude the affidavit provided sufficiently recent information to support the
executing officers’ reliance on the magistrate’s authorization.” 603 F.3d at 1233.
The most recent information tying the Lawton residence and Mr. Villanueva to
drug activity preceded the search by only three months. In Mathis, 357 F.3d at
1203, 1206, we held two-month-old information was not stale, and in United
States v. Myers, 106 F.3d 936, 939 (10th Cir. 1997), we held that five-month-old
information was not stale. Both of these cases involved illegal drug distribution,
as here. It was reasonable for the officers in this case to rely on the magistrate’s
authorization when similar gaps of time have been upheld by our court in the past.
In sum, we hold that the affidavit provided sufficient indicia of probable
cause to justify the executing officers’ good faith reliance upon the magistrate's
issuance of the search warrant.
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C. General Search
Mr. Villanueva contends the warrant was overbroad in both its issuance and
its execution and consequently resulted in a general search in violation of the
Fourth Amendment, which requires that warrants “particularly describ[e] . . . the
persons or things to be seized.” U.S. Const. amend. IV. We disagree.
“The requirement that warrants shall particularly describe the things to be
seized makes general searches under them impossible and prevents the seizure of
one thing under a warrant describing another. As to what is to be taken, nothing
is left to the discretion of the officer executing the warrant.” Stanford v. Texas,
379 U.S. 476, 485, (1965) (quoting Marron v. United States, 275 U.S. 192, 196
(1927)); see also Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (problem
of general warrant “is not that of intrusion per se, but of a general, exploratory
rummaging in a person's belongings”). “The particularity requirement ensures
that a search is confined in scope to particularly described evidence relating to a
specific crime for which there is demonstrated probable cause.” Voss v.
Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985). A warrant describing “items to
be seized in broad and generic terms may be valid if the description is as specific
as circumstances and nature of the activity under investigation permit.” United
States v. Wicks, 995 F.2d 964, 973 (10th Cir. 1993) (quoting United States v.
Harris, 903 F.2d 770, 775 (10th Cir. 1990)). We review de novo the legal
question of whether a warrant is overbroad. Id.
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With this framework in mind, we turn to the search warrant in this case.
Attachment B of the warrant set forth an extensive list of items to be seized, all
limited by the general specification that they evidence “the business of illegal
drug distribution and laundering profits from [the] enterprise” in violation of the
Oklahoma drug statutes. Rec., vol. 1, at 285. The list included bank records,
cash receipts, telephone records, investment records, and credit card records
relating to All-Star Automotive, the business through which Mr. Villanueva was
suspected of laundering drug money. In addition to these items, the warrant
allowed for the seizure of all computer storage devices used to store the above
information, all electronic communications between identified co-conspirators,
and all the paraphernalia used for packaging, cutting, weighing, and distributing
illegal narcotics. Although Mr. Villanueva argues that this list permitted the
search and seizure of any and all property in the residence, we have repeatedly
“upheld search warrants cast in comparably broad terms, where the subject of the
search was a drug trafficking or drug dealing business, and where the
circumstances permitted only a more general listing of the items to be seized.”
Wicks, 995 F.2d at 973 (upholding search warrant allowing seizure of “large
amounts of United States currency . . . books, records, receipts, notes, ledgers,
and other papers relating to the transportation, ordering, sale and distribution of
controlled substances . . . contraband, proceeds of drug sales and/or records of
drug transactions, drug sources, and drug customers . . . safe deposit boxes . . .
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caches of drugs, large amounts of currency, financial instruments, precious
metals, jewelry . . . addresses or telephone numbers in books or papers . . .
photographs . . . paraphernalia . . . includ[ing] syringes, bottles, scales, plastic
bags, balloons, heat sealers, glassware, chemicals, mechanical stirrers, and/or heat
sources[,] . . . stolen weapons or goods.” Id. at 967) (citing United States v.
Sullivan, 919 F.2d 1403, 1424 n. 31 (10th Cir. 1990); United States v. Harris, 903
F.2d 770, 774-74 (10th Cir. 1990); United States v. Riley, 906 F.2d 841, 845 (2d
Cir.1990)). Given our precedents upholding the validity of similar warrants in
similar situations, we hold that the warrant in this case met the Fourth
Amendment's particularity requirement.
Mr. Villanueva also makes a conclusory argument that the search inventory
indicates the officers exceeded the scope of the warrant when they searched the
Lawton residence, and he correctly points out the “good faith exception does not
apply to the improper execution of a warrant.” United States v. Moland, 996 F.2d
259, 261 (10th Cir. 1993). But Mr. Villaneuva provides no evidence or argument
showing there was a general rummaging for evidence during the search. The
search inventory indicates that all items taken were permitted to be taken by the
search warrant, which described the evidence with particularity. The search thus
did not exceed its scope.
D. The Armed Career Criminal Act
Lastly, Mr. Villanueva contends the district court erred in classifying him
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as an armed career criminal and enhancing his sentence under ACCA. We review
a de novo a sentence enhancement imposed under ACCA. United States v.
Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). “The government carries the
burden of proving by a preponderance of the evidence that an enhancement is
appropriate.” Id. (quoting United States v. Johnson, 130 F.3d 1420, 1430 (10th
Cir. 1997)).
The Armed Career Criminal Act establishes a minimum fifteen year
sentence for anyone convicted under 18 U.S.C. § 922(g) who also has three
separate convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C.
§ 924(e). Mr. Villanueva argues his classification as an armed career criminal
under ACCA violates his Sixth Amendment rights because the prior predicate
crimes used to enhance his sentence were not proven to a jury beyond a
reasonable doubt. This argument is foreclosed by Supreme Court and Tenth
Circuit precedent, as Mr. Villanueva admitted below and again concedes on
appeal. See Almendarez-Torrez v. United States, 523 U.S. 224, 226-27 (1998)
(sentencing judge may find prior conviction used to increase sentence by
preponderance of the evidence); United States v. Moore, 401 F.3d 1220, 1224
(10th Cir. 2005) (rejecting Sixth Amendment argument and noting that
“[a]lthough the Court may overrule Almendarez-Torres at some point in the
future, it has not done so, [and] we will not presume to do so for the Court”
because “we are bound by existing precedent”); see also United States v. Dorris,
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236 F.3d 582, 587-88 (10th Cir. 2000) (rejecting Sixth Amendment argument that
prior convictions used to apply ACCA enhancement must be charged in
indictment and proven to jury beyond a reasonable doubt).
Mr. Villanueva also argues that one of his prior convictions in Oklahoma
for distribution of marijuana is not a serious drug offense for purposes of ACCA
and that the district court therefore erred in using it to increase his sentence.
ACCA defines a “serious drug offense” as:
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et
seq.), the Controlled Substances Import Act and Export Act (21
U.S.C. 951 et seq.) or chapter 705 of title 46, for which a maximum
term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing
or possessing with intent to manufacture or distribute, a controlled
substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), for which a maximum term of imprisonment of ten
year years or more is prescribed by law.
18 U.S.C. § 924 (e)(2)(A) (emphasis added).
Notwithstanding the explicit language of the Act, Mr. Villanueva contends
that “the focus for ACCA purposes should be the sentence actually received,
rather than the statutory maximum.” Aplt. Br. at 42. He posits that his prior
Oklahoma conviction for distribution of marijuana is not a serious drug offense
under ACCA because he only received a sentence of six years, which “does not
meet the 10 year threshold of § 924(e) for a ‘serious drug offense.’” Id.
Moreover, he asserts that because marijuana is legal in Colorado and Washington
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for recreational and personal use, and legal for medicinal purpose in twenty states
and the District of Columbia, “distribution of marijuana cannot be considered a
‘serious drug offense’ for purposes of the ACCA.” Aplt. Br. at 42. But Congress
has determined otherwise. Distribution of marijuana remains illegal in Oklahoma
and carries a maximum sentence of life imprisonment. Okla. Stat. tit. 63 § 2-401.
The plain language of ACCA clearly states that a state offense is a serious drug
offense if the “maximum term of imprisonment of ten years or more is prescribed
by law.” § 924 (e)(2)(A)(ii). See McNeill v. United States, 131 S. Ct. 2218, 2224
(2011).
The district court did not err in applying the ACCA enhancement and
overruling Mr. Villanueva’s objection to his sentence.
CONCLUSION
We AFFIRM Mr. Villanueva’s conviction and sentence.
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