United States v. Juan Gonzalez-Ruiz

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 13-1353 & 13-1441
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant,
v.
JUAN M. GONZALEZ-RUIZ,
Defendant-Appellant/Cross-Appellee.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 12-cr-28-wmc — William M. Conley, Chief Judge.
ARGUED APRIL 2, 2014 — DECIDED JULY 24, 2015
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Juan M. Gonzalez-Ruiz was charged
with possessing a firearm as a felon after police in Fitchburg,
Wisconsin, found two handguns in his car during a routine
traffic stop. He moved to suppress the guns, but the district
court denied the motion, finding that he consented to the
2 Nos. 13-1353 & 13-1441
search. Gonzalez-Ruiz then entered a conditional guilty plea,
reserving the right to appeal the denial of suppression.
At sentencing the government sought an enhanced penalty
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), based on Gonzalez-Ruiz’s criminal history. His record
includes convictions for aggravated assault, aggravated
battery, possession of a sawed-off shotgun, and conspiracy to
commit armed robbery. Gonzalez-Ruiz conceded that the first
two crimes qualify as violent felonies under the ACCA, and
we’ve held that the third does not. See United States v. Miller,
721 F.3d 435 (7th Cir. 2013). The government argued that
conspiracy to commit armed robbery is a violent felony under
the “residual clause” of the ACCA, see 18 U.S.C.
§ 924(e)(2)(B)(ii), so that conviction counts as the third predi-
cate for purposes of the Act. The judge disagreed and imposed
a guidelines term of 37 months.
Gonzalez-Ruiz appealed, challenging the denial of his
suppression motion. The government cross-appealed seeking
resentencing under the ACCA. We put the case on hold to
await the Supreme Court’s decision in Johnson v. United States,
which affects the government’s cross-appeal. That decision is
now in; the Court held that the residual clause is unconstitu-
tionally vague. See Johnson v. United States, 135 S. Ct. 2552, 2563
(2015). Accordingly, the government has moved to dismiss the
cross-appeal. That motion is granted. On the remaining issue,
we find no error in the district court’s denial of suppression.
From the perspective of a reasonable officer, Gonzalez-Ruiz’s
words and actions during the traffic stop manifested his
consent to search.
Nos. 13-1353 & 13-1441 3
I. Background
At about 3 a.m. on October 19, 2011, Sergeant Matthew
Laha of the Fitchburg Police Department stopped Gonzalez-
Ruiz after a license-plate check of his car revealed that his
driver’s license was suspended. As Laha initiated the stop,
Officer Peter Johnson arrived on the scene to assist. Much of
the traffic stop was captured by a dash-mounted video camera
in Laha’s patrol vehicle and by his lapel microphone.
Laha approached the driver’s side door and questioned
Gonzalez-Ruiz, then returned to his squad to write a ticket.
While he filled out the ticket, Laha told Johnson that he
intended to ask Gonzalez-Ruiz for consent to search his car.
When Laha finished writing the ticket, he and Johnson walked
back to Gonzalez-Ruiz’s car and asked him to step out. Laha
explained the ticket and asked if Gonzalez-Ruiz had any
questions. Gonzalez-Ruiz said, “no,” and Laha told him,
“You’re free to go, my man.”
As all three men began walking back to their vehicles, Laha
suddenly spun around and called out, “Hey Juan!” Gonzalez-
Ruiz answered, “Yeah?” and Laha asked, “You don’t have any
weapons, drugs, anything like that?” Gonzalez-Ruiz replied,
“Oh? No, no. I just, I just left my house.” Laha then asked,
“Mind if I search? Mind if I take a look?” Gonzalez-Ruiz
responded, “You can, you can … yeah,” then closed his car
door, walked to the rear of his vehicle, and opened his jacket.
Laha did a quick pat-down search and continued to question
Gonzalez-Ruiz: “Nothin’ in your car that you’re concerned
about?” Gonzalez-Ruiz did not respond.
4 Nos. 13-1353 & 13-1441
A few moments later, Gonzalez-Ruiz took out his cell
phone and asked if he could call his wife, Camille Vasquez, to
have her pick him up.1 Laha replied, “Absolutely!” As Laha
finished the frisk, Gonzalez-Ruiz called Vasquez and began
talking with her in both English and Spanish.
Laha then walked to the side of Gonzalez-Ruiz’s car and
asked again if he could search it: “Nothing in your car that I
should be concerned about? Mind if I take a look?” Gonzalez-
Ruiz was speaking quietly on his phone at this point; Laha’s
microphone did not pick up what he was saying. Immediately
after Laha asked this question, however, Gonzalez-Ruiz looked
up at Laha and responded in a louder voice, “I guess,” then
raised his right hand and nodded in affirmation. Laha asked
again, “So we’re good?” Gonzalez-Ruiz did not respond.
Johnson then directed him toward the curb as Laha started the
search. Gonzalez-Ruiz did not object when he saw Laha open
the driver’s-side door to begin the search. Within ten seconds,
Laha found two handguns and ammunition under the driver’s
seat.
Gonzalez-Ruiz was indicted for possessing a firearm as a
felon. See 18 U.S.C. § 922(g)(1). He moved to suppress the guns,
arguing that he did not consent to the search of his car. He
explained in the motion that when he said “I guess,” he was
not consenting to the search but instead was responding to a
question Vasquez asked him over the phone: “Should I come
and pick you up now?” At the suppression hearing, Vasquez
1
Testimony at the suppression hearing clarified that Vasquez and
Gonzalez-Ruiz have children together but are not married.
Nos. 13-1353 & 13-1441 5
testified to that effect. Gonzalez-Ruiz did not testify. The
government presented testimony from both Laha and Johnson.
The officers said that Gonzalez-Ruiz’s response of “I guess”
was directed at Laha’s question about searching the car.
Based on this testimony and a review of the video and
audio recordings of the stop, a magistrate judge found the
officers’ testimony credible and supported by the recordings.
Accordingly, the magistrate judge recommended that the
district court deny suppression. The district judge adopted the
magistrate judge’s report and recommendation and denied the
motion to suppress.
Gonzalez-Ruiz then entered a conditional guilty plea
pursuant to a plea agreement, reserving the right to appeal the
denial of the suppression motion. At sentencing the govern-
ment argued that Gonzalez-Ruiz should be sentenced as an
armed career criminal under the ACCA based on four prior
convictions: a Puerto Rico conviction for aggravated assault; a
Wisconsin conviction for aggravated battery; and Massachu-
setts convictions for possession of a sawed-off shotgun and
conspiracy to commit armed robbery. Gonzalez-Ruiz conceded
that the first two convictions are ACCA predicates but argued
that the Massachusetts convictions are not. Applying Begay v.
United States, 553 U.S. 137 (2008), the judge concluded that
neither crime qualified as a “violent felony” under the ACCA’s
residual clause. Without the ACCA enhancement, the advisory
imprisonment range under the sentencing guidelines was 30 to
37 months. The judge imposed a term of 37 months.
As contemplated by the plea agreement, Gonzalez-Ruiz
appealed the denial of suppression. The government cross-
6 Nos. 13-1353 & 13-1441
appealed seeking review of the judge’s decision not to apply
the ACCA’s enhanced penalty.
II. Discussion
Gonzalez-Ruiz challenges the district court’s conclusion
that the warrantless search of his car was valid because he
consented to it. See, e.g., Fernandez v. California, 134 S. Ct. 1126,
1131–32 (2014) (noting that the Fourth Amendment generally
requires a warrant to search, but consent is an exception);
United States v. Jackson, 598 F.3d 340, 346 (7th Cir. 2010) (same).
Whether consent was given is a factual issue that we review for
clear error. United States v. $304,980.00 in U.S. Currency,
732 F.3d 812, 819 (7th Cir. 2013). “The consent inquiry focuses
on what is reasonably apparent to a reasonable inquiring
officer so as to further the deterrence rationale of the exclusion-
ary rule.” Id. (internal quotation marks omitted). As for the
district court’s credibility determinations, we will only reject
them if they are completely without foundation. United States
v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012).
We don’t see any error in the district court’s findings on
consent. Gonzalez-Ruiz’s argument for suppression rested
largely on Vasquez’s testimony—more specifically, her claim
that when Gonzalez-Ruiz said “I guess,” he was really re-
sponding to her question about picking him up and not to
Laha’s request for permission to search. But Vasquez wasn’t
present at the scene, and the officers who were there testified
that his verbal response “I guess” came in reply to Laha’s
request for consent to search and was accompanied by a wave
Nos. 13-1353 & 13-1441 7
of the hand and a nod. The district court accepted the officers’
testimony as credible, and that determination gets substantial
deference. United States v. Williams, 209 F.3d 940, 943 (7th Cir.
2000) (explaining that the reviewing court’s deference to
credibility findings is “near absolute”). The district court also
relied on the video and audio recordings, which support the
officers’ testimony. Gonzalez-Ruiz does not question the
contents of the recordings or the court’s interpretation of them.
Instead, he points to Laha’s unanswered question “So we’re
good?” as proof that his initial response was ambiguous. To the
extent that there was any residual ambiguity, it was eliminated
when Laha began the search and Gonzalez-Ruiz did not object.
We faced a similar situation in United States v. Price, 54 F.3d 342(7th Cir. 1995). There a state trooper officer asked a driver for
consent to search his car by saying, “Do you mind if I take a
look?” The driver’s response—“Sure”—was ambiguous in that
it could have meant “Sure, I mind” or “Sure, go ahead.” Id. at
346. Yet we upheld the district court’s finding of consent,
concluding that the “crucial fact” was the driver’s “failure to
protest upon learning that [the trooper] understood his
response as a consent to the search.” Id. So too here. If
Gonzalez-Ruiz did not intend to consent, Laha’s commence-
ment of the search “was the time to make that clear.” Id.In short, Gonzalez-Ruiz has not left us “with the definite
and firm conviction that a mistake has been committed.” Am.
Boat Co. v. United States, 583 F.3d 471, 483 (7th Cir. 2009)
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985)). The district court did not clearly err in finding that
8 Nos. 13-1353 & 13-1441
Gonzalez-Ruiz’s words and actions manifested his consent to
the search.
In the cross-appeal, the government asked us to reverse and
remand for resentencing under the ACCA, which mandates
lengthier sentences for felons who possess firearms and have
previously been convicted of three violent felonies. Compare
18 U.S.C. § 924(e)(1) (imposing a minimum of 15 years) with id.§ 924(a)(2) (setting a maximum of 10 years). A “violent felony”
under the statute is any crime that has physical force as an
element, id. § 924(e)(2)(B)(i), or “is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another,”
§ 924(e)(2)(B)(ii). That last portion has become known as the
“residual clause” of the ACCA. The question in this case is
whether the crime of conspiracy to commit armed robbery is a
predicate violent felony under the residual clause.2
The Supreme Court’s recent decision in Johnson forecloses
application of the ACCA. Johnson held that the residual clause
is void for vagueness and so “imposing an increased sentence
under the residual clause … violates the Constitution’s
guarantee of due process.” 135 S. Ct. at 2562. In light of Johnson,
the government has moved to dismiss the cross-appeal. We
grant that motion and affirm the judgment.
AFFIRMED.
2
The district court held that Gonzalez-Ruiz’s conviction for possession of
a sawed-off shotgun is not a violent felony under the residual clause,
anticipating our later decision in United States v. Miller, 721 F.3d 435 (7th
Cir. 2013).