United States v. William Smith

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30210
Plaintiff-Appellees, D.C. No. 1:15-cr-0015-SPW
v.
MEMORANDUM*
WILLIAM MAURICE SMITH,
Defendant-Appellant
On Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted July 9, 2018
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ, ** District
Judge.
William Maurice Smith appeals his convictions under 21 U.S.C. § 846,
21 U.S.C. § 841(a)(1), and 18 U.S.C. § 924(c)(1)(A), and his sentence, which was
enhanced pursuant to 21 U.S.C. § 851. We have jurisdiction under 28 U.S.C.
§ 1291. As the parties are familiar with the facts, we do not recount them here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
We affirm.
1. The requirements of Federal Rule of Criminal Procedure 41 did not apply
to the motel room search because the search was not “federal in character.” United
States v. Crawford, 657 F.2d 1041, 1046 (9th Cir. 1981). Additionally, the district
court’s determination that the evidence mislabeling was merely a mistake was not
clearly erroneous. United States v. Freitas, 800 F.2d 1451, 1454 (9th Cir. 1986).
The district court properly denied Smith’s motion to suppress evidence seized in
his motel room based upon police mislabeling.
2. The state trooper had probable cause to arrest Smith before he conducted
the search that revealed contraband in Smith’s waistband. United States v. Morgan,
799 F.2d 467, 469 (9th Cir. 1986). The search was a lawful search incident to
arrest. United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) (per curiam). The
district court correctly denied Smith’s motion to suppress the evidence seized from
his waistband.
3. We held, supra, that the evidence Smith challenges was lawfully obtained,
thus no evidence needs to be excised when determining whether the warrants to
search Smith’s motel room and car were supported by probable cause. United
States v. Giordano, 416 U.S. 505, 555 (1974). Smith does not challenge the
warrants as they stand. The district court correctly concluded that the warrants to
search Smith’s motel room and car were supported by probable cause.
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4. The jury was not required to unanimously agree as to which of the three
firearms listed in the indictment was used in furtherance of a drug trafficking
crime. See United States v. Ruiz, 710 F.3d 1077, 1081 (9th Cir. 2013).
Accordingly, the district court did not plainly err by not giving sua sponte a
specific unanimity jury instruction for 18 U.S.C. § 924(c). United States v.
Payseno, 782 F.2d 832, 834 (9th Cir. 1986).
5. Smith would not have been able to challenge his previous convictions, as
listed in the Information, even if the district court had afforded him the opportunity
to do so. See 21 U.S.C. § 851(e); United States v. Housley, 907 F.2d 920, 921-22
(9th Cir. 1990). The district court’s failure to abide by the procedural requirements
of 21 U.S.C. § 851(b) was therefore harmless error. United States v. Severino, 316
F.3d 939, 947-48 (9th Cir. 2003) (en banc).
6. The district court reasonably relied on the responses to its inquiries
regarding whether Smith had an opportunity to read and discuss his presentence
report with his attorney, thus satisfying Federal Rule of Criminal Procedure
32(i)(1)(A). United States v. Soltero, 510 F.3d 858, 863 (9th Cir. 2007) (per
curiam). Alternatively, because the life sentence imposed was mandatory, Smith
was not prejudiced by the district court’s denial of additional time to review his
presentence report, and any non-compliance with Rule 32(i)(1)(A) was harmless.
Id.
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7. Although it may be possible that the sentencing enhancement forced the
district court to impose a sentence in conflict with the 18 U.S.C. § 3553(a) factors,
Smith concedes that a constitutional challenge to his mandatory life sentences is
not supported by our court’s precedent. The district court did not unconstitutionally
impose the mandatory life sentences.
AFFIRMED.
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