United States v. Umberto Rubio

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4025
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
UMBERTO ALMAZAN RUBIO,
Defendant-Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00191-CCE-1)
Submitted: July 9, 2013 Decided: July 24, 2013
Before AGEE, GREGORY, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Greensboro, North
Carolina, Mireille P. Clough, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Umberto Almazan Rubio (“Rubio”) pled guilty to possession
of a firearm by an illegal alien in violation of 18 U.S.C.
§§ 922(g)(5) and 924(a)(2). The district court imposed a
within-Guidelines sentence of 24 months’ imprisonment. Rubio’s
guilty plea was conditioned on his ability to appeal the denial
of his motion to suppress the evidence seized pursuant to a
search warrant. On appeal, he contends that the district court
erred in denying his motion to suppress because the search
warrant application included stale information. He also
contends that his sentence is unreasonable because it is greater
than necessary to accomplish the goals of 18 U.S.C. § 3553(a).
For the reasons that follow, we affirm the judgment of the
district court.
I.
On April 25, 2012, deputies of the Guilford County, North
Carolina Sheriff’s Department executed a search warrant looking
for evidence of cockfighting at 5101 Watlington Road, Lot A,
Greensboro, North Carolina, a residence known to have been used
for cockfighting in 2009. The warrant also allowed a search of
the persons of Rubio, Jose Homar Olvera Ramos (“Ramos”) (who is
related to Rubio’s wife), and their vehicles.
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The search warrant application included the affidavit of
Deputy Sheriff S.D. Jarrell (“Deputy Jarrell”), a nine-year
veteran of the Guilford County Sheriff’s Department. As part of
his affidavit, Deputy Jarrell set forth the fact of a prior
search at the Watlington Road residence on May 14, 2009, and
that Ramos, who was specifically listed in the search warrant at
issue in this case, had been indicted on October 5, 2009, for
cockfighting. Deputy Jarrell noted that Ramos had entered a
guilty plea to misdemeanor animal cruelty on February 14, 2011,
and been placed on probation for eighteen months. One condition
of Ramos’s probation was that he not possess any chickens.
Deputy Jarrell’s affidavit also chronicled various law
enforcement contacts at the Watlington Road residence throughout
2011 and 2012, during which several officers had visited the
premises and observed signs of chickens and roosters being
raised for cockfighting:
• On July 1, 2011, Officer Garrard of Guilford County
Animal Control visited the premises to determine if a dog
had been vaccinated for rabies. While on the premises,
she observed over 150 roosters and chickens, some of
which had combs trimmed, spurs cut, and were tethered.
• On December 2, 2011, Deputy Jarrell was at the residence
to serve an unrelated warrant and observed chickens. No
action was taken, however, because at that time, Deputy
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Jarrell was unaware that a resident of the premises was
on probation and not allowed to have chickens.
• On March 21, 2012, Guilford County Deputy Crisp visited
the residence to investigate a noise complaint and
observed at least one hundred roosters on the premises.
• On March 26, 2012, Guilford County Deputy Murphy observed
a tethered rooster with a trimmed comb and wattle on the
premises.
• On April 1, 2012, officers were again called to the
residence in reference to a noise disturbance. The
complainant stated that there were chickens and roosters
at the residence continually making noise.
Deputy Jarrell concluded the search warrant application with a
summary of the events that occurred nine days before the search
warrant was issued and executed:
On April 16, 2012[,] yet another noise
disturbance was called in for 5101
Watlington Rd, Lot A, Greensboro. This
applicant was the responding officer. When
this applicant pulled into the driveway,
Jose Omar Olvera Ramos’ Beetle, tag ADY6883,
was parked in the driveway. This applicant
spoke with Umberto Rubio’s wife, Maralee
Mar, and explained that this applicant had
received a noise complaint. Mrs. Mar stated
that it was time for her to feed the birds,
that’s why they were making so much noise.
This applicant walked over to where the
chicken coop was and observed a rooster that
had its comb and wattle cut. This applicant
also observed two wooden anchors in the
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ground with tether straps attached to same.
These wooden anchors are used to tether the
roosters. In the make shift fence, this
applicant observed a clear, dark colored
bottle that appeared to be an antiseptic
bottle.
All of the items combined are indicative
that the residents are training the roosters
for fighting. Mrs. Mar stated to me that
her husband enjoyed cockfighting and that he
and her brother-in-law, Jose Omar Olvera
Ramos, just got back from selling
approximately 60 roosters and chickens in
Mexico over the weekend. There were
approximately eighty (80) roosters, hens,
cockerels, and chicks.
(J.A. 79.)
When the search warrant was executed on April 25, 2012,
officers found three firearms in the residence, as well as two
identification documents with Rubio’s photograph. It was later
determined that one of the identification cards was a
counterfeit United States Alien Resident Registration Card.
Rubio was arrested and transported to the Guilford County
Sheriff’s Department, where he was advised of his Miranda rights
in Spanish. Rubio waived his rights and agreed to speak with
officers. He admitted ownership of two of the three firearms.
Rubio was determined to be a native and citizen of Mexico, and
present in the United States without having been admitted or
having obtained the permission of the Attorney General or the
Director of Homeland Security.
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On May 29, 2012, Rubio was indicted on one count of
possession of a firearm by an alien, in violation of 18 U.S.C.
§§ 922(g)(5) and 924(a)(2), and one count of possession of a
forged and counterfeit alien registration receipt card, in
violation of 18 U.S.C. § 1546(a). He subsequently moved to
suppress the evidence seized in the April 25, 2012 search,
contending that the search warrant lacked probable cause because
it contained stale information from 2009. The United States
District Court for the Middle District of North Carolina denied
Rubio’s motion, finding that the warrant was supported by
probable cause and there was no staleness because the affidavit
included information that was obtained “just a few days before
the search warrant was sought.” (J.A. 72.)
On August 15, 2012, Rubio entered a conditional guilty plea
on the count of possession of a firearm by an alien, but
reserved the right to appeal the denial of his motion to
suppress.
Rubio appeared for sentencing on November 27, 2012. His
advisory Guidelines range was 24 to 30 months’ imprisonment, and
he requested a sentence below the Guidelines range, arguing that
his early admission of wrongdoing, lack of criminal record,
family needs, and passive possession of the firearms warranted a
below-Guidelines sentence. The district court denied Rubio’s
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request and imposed a sentence at the low end of the Guidelines
range, explaining as follows:
I’ve considered the argument that a sentence
below the guideline range might be
appropriate because of Mr. Rubio’s lack of
criminal record, his family and work
stability, the passive possession of the
firearm and his early statement of
responsibility to law enforcement.
Certainly those factors are important. I
think they do justify a sentence at the low
end of the guideline range, but because of
the number of guns, I don’t know that – I
don’t feel comfortable going below the
guideline range.
It is obviously a serious offense, and given
that he did admit to personally possessing
two of the guns, and there was a third one
there, I think that a sentence within the
guideline range is needed to reflect the
seriousness of the offense.
(J.A. 149–50.) Rubio was sentenced to 24 months’ imprisonment
and a two-year term of supervised release.
He now appeals, and we have jurisdiction pursuant to 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
Rubio raises two central issues on appeal. First, Rubio
contends that the district court erred in denying his motion to
suppress because the affidavit in support of the search warrant
contained stale information. Second, Rubio argues that his
sentence is unreasonable because it is greater than necessary to
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accomplish the goals of 18 U.S.C. § 3553(a). We hold that the
district court did not err in either respect.
A.
We first address Rubio’s claim that his motion to suppress
was wrongly denied on grounds of staleness. We review the
factual findings underlying a motion to suppress ruling for
clear error, and the legal determinations de novo. United
States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005). “When
such a motion is denied, we review the evidence in the light
most favorable to the government.” Id.Rubio argues that the search warrant relevant to his case
is invalid because the supporting affidavit included stale
information. Rubio specifically references the dates of May 14,
2009 (prior search at the Watlington Road residence), and
October 5, 2009 (indictment of Ramos for cockfighting),
contending that such events occurred nearly three years before
the execution of the search warrant, and that the warrant thus
“lacked any information of cockfighting close to [its]
execution.” (Appellant’s Br. 7.)
The district court rightly rejected Rubio’s staleness
argument. As we have made clear, “the vitality of probable
cause cannot be quantified by simply counting the number of days
between the occurrence of the facts supplied and the issuance of
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the affidavit.” United States v. Rhynes, 196 F.3d 207, 234 (4th
Cir. 1999) (brackets omitted); see also United States v. Spikes,
158 F.3d 913, 923 (6th Cir. 1998) (staleness not measured
“solely by counting the days on a calendar”). “Rather, we must
look to all the facts and circumstances of the case, including
the nature of the unlawful activity alleged, the length of the
activity, and the nature of the property to be seized.” United
States v. Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (quoting
Rhynes, 196 F.3d at 234).
Here, under the totality of the circumstances, there was
ample evidence to support a finding of probable cause. Deputy
Jarrell’s supporting affidavit referenced the May 2009 search
warrant and the October 2009 arrest of Ramos and his subsequent
conviction for animal cruelty, which reflected the continuing
nature of alleged criminal activity at the Watlington Road
residence. As recounted in the search warrant affidavit, on
several occasions from July 2011 until April 2012, officers were
repeatedly dispatched to the Watlington Road residence to
investigate noise complaints related to the numerous roosters,
chickens, and other fowl that were kept there. The officers
detailed their observations of roosters that had their combs and
wattles cut, wooden stakes in the ground which were used to
tether the roosters, and bottles that contained antiseptic for
the birds. Most significantly, Deputy Jarrell responded to a
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noise complaint on April 16, 2012 – nine days prior to the
execution of the search warrant – and observed a rooster that
had its comb and wattle cut, wooden anchors with tether straps,
and an antiseptic bottle, items “all [of which] combined are
indicative [of] training the roosters for fighting.” (J.A. 79);
see Emery v. Holmes, 824 F.2d 143, 149 (1st Cir. 1987) (“Where
recent information corroborates otherwise stale information,
probable cause may be found.”). In light of all of these facts,
we cannot agree with Rubio that there was insufficient probable
cause to search the Watlington Road residence. We therefore
conclude that the district court did not err in denying Rubio’s
motion to suppress.
B.
Rubio also contends that the district court should have
granted his request for a sentence below the advisory Guidelines
range because he presented mitigating evidence demonstrating
that a sentence within the advisory Guidelines range was greater
than necessary. We review Rubio’s sentence under a deferential
abuse-of-discretion standard, see Gall v. United States, 552
U.S. 38, 51 (2007), for procedural and substantive
reasonableness. Id.; United States v. Lynn, 592 F.3d 572, 575
(4th Cir. 2010). If a sentence is within the appropriate
Sentencing Guidelines range, we presume that the sentence is
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reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217
(4th Cir. 2010). Such a presumption is rebutted only by showing
“that the sentence is unreasonable when measured against the [18
U.S.C.] § 3553(a) factors.” United States v. Montes-Pineda, 445
F.3d 375, 379 (4th Cir. 2006).
We conclude that the district court committed neither
procedural nor substantive error in sentencing. The court
accurately calculated and considered Rubio’s Guidelines range,
heard argument from counsel for a sentence below the advisory
Guidelines range, and gave Rubio an opportunity to address the
court. The court fully considered all of the reasons Rubio
offered in support of his argument for a below-Guidelines
sentence — his early admission of wrongdoing, lack of criminal
record, family needs, and passive possession of the firearms —
but explained that the within-Guidelines sentence was warranted
in light of the seriousness of the offense. On appeal, counsel
does not offer any grounds to rebut the presumption that Rubio’s
within-Guidelines sentence is substantively reasonable, and our
review reveals none. The district court thus did not abuse its
discretion in sentencing Rubio.
III.
For the foregoing reasons, we affirm the judgment of the
district court. We dispense with oral argument because the
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facts and legal contentions are adequately presented in the
materials before this Court and argument would not aid the
decisional process.
AFFIRMED
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