United States v. Sheldon King

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10007
Plaintiff-Appellee,
D.C. No.
v. 1:19-cr-00062-
LJO-SKO-1
SHELDON KING,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted November 20, 2020 *
Pasadena, California
Filed January 14, 2021
Before: Consuelo M. Callahan and Patrick J. Bumatay,
Circuit Judges, and Gregory A. Presnell, ** District Judge.
Opinion by Judge Bumatay
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable Gregory A. Presnell, United States District Judge
for the Middle District of Florida, sitting by designation.
2 UNITED STATES V. KING
SUMMARY ***
Criminal Law
The panel affirmed the district court’s denial of the
defendant’s motion to suppress firearms, and dismissed the
remainder of his appeal as waived, in a case in which the
defendant entered a conditional guilty plea to being a felon
in possession.
Challenging the validity of a search warrant pursuant to
which law enforcement searched his home, the defendant
argued that the warrant was overbroad—that there was only
probable cause for a particular revolver, and no other
firearms. The panel held that the warrant did not violate the
Fourth Amendment. The panel wrote that an officer’s
affidavit, which alerted a judge that the defendant took the
revolver to hide it from law enforcement for a domestic-
abuse suspect, raised the inference that the defendant
possessed other firearms; and that the facts, taken together,
provided the judge with a substantial basis to authorize the
search for “any firearm.” The panel wrote that even though
the warrant complied with the Fourth Amendment, the good-
faith exception also justifies denial of the suppression
motion.
The panel held that the defendant’s knowing and
voluntary appellate waiver precludes his attack on his career-
offender sentence enhancement.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KING 3
The defendant urged this court to allow him to withdraw
his plea and enter a new agreement preserving his right to
appeal his sentence because the district court violated Fed.
R. Crim. P. 11(c)(1) by participating in his plea negotiations.
Rejecting the government’s contention that this claim is
subsumed by the defendant’s appellate waiver, the panel
wrote that the failure to comply with Rule 11(c)(1) may be
reason not to enforce an appellate waiver. Reviewing for
plain error, the panel held that neither of two instances
identified by the defendant constitute improper judicial
participation in plea negotiations, and the defendant cannot
in any event show that the judge’s interactions affected his
substantial rights.
COUNSEL
Carlton F. Gunn, Pasadena, California, for Defendant-
Appellant.
McGregor W. Scott, United States Attorney; Camil A.
Skipper, Appellate Chief; Katherine E. Schuh, Assistant
United States Attorney; United States Attorney’s Office,
Fresno, California; for Plaintiff-Appellee.
OPINION
BUMATAY, Circuit Judge:
While searching Sheldon King’s home pursuant to a
warrant, Fresno police discovered a medley of firearms. But
any firearm is too many for King, who had two felony
convictions. He was charged with being a felon in
possession, and after the district court refused to suppress the
4 UNITED STATES V. KING
firearms, he entered a plea agreement. King was sentenced
to 90 months. He now appeals the district court’s denial of
his motion to suppress as well as his sentence.
For the reasons explained below, we affirm the district
court’s denial of the motion to suppress and dismiss the
remainder of the appeal as waived.
I.
The police began looking into King after the
investigation of a serious domestic-violence incident
involving individuals uncharged in this case. While the
details of the abuse are troubling, we need only provide the
key points:
• It began when a male suspect pointed an unloaded
gun at a woman’s head and pulled the trigger.
• The suspect then started to open a box of ammunition
while the victim fled outside.
• The suspect followed the victim and struck her across
the face.
• The victim then made contact with the police and
described the suspect’s firearm as a “large silver &
gold revolver” with an unknown caliber.
• In a jailhouse conversation between the suspect and
victim, the suspect asked the woman to give “the
thing” to “Dubs.”
• Police suspected that “the thing” referred to the gun
and asked the victim about it.
UNITED STATES V. KING 5
• The victim admitted she gave the firearm to “Dubs”
and described his appearance and phone number, the
location of his house, his live-in girlfriend, and his
vehicles.
Using the victim’s information, officers learned that
“Dubs” was King. They also discovered that King was
prohibited from possessing firearms based on two prior
felonies: one for the willful infliction of corporal injury on a
spouse or cohabitant resulting in a traumatic condition, and
one for transporting cocaine for sale. Finally, officers
observed King’s car parked at his residence—the place
where the victim said she delivered the firearm.
On the basis of this information, a police officer signed
an affidavit stating that there was probable cause to believe
King was in violation of California Penal Code § 29800(a)
(felon in possession) and requested permission to search his
home for the “outstanding firearm and any evidence that
would further the [officer’s] investigation.” A judge then
authorized the warrant, allowing the search of King’s home
for “[a]ny firearm” and various other firearm-related items.
The search of King’s home turned up four firearms: (1) a
Norinco Model 1911 .45 caliber pistol; (2) an A. A. Arms
Model AP9 9mm caliber pistol; (3) a Hermann Weihrauch
Model HW357 .357 caliber revolver, which turned out to be
the “silver & gold revolver” described by the victim; and
(4) an AK-style .545 by 39mm caliber machine gun rifle.
Law enforcement determined that the AK-style, fully
automatic machine gun had been stolen from an army base.
King was charged in federal court with being a felon in
possession in violation of 18 U.S.C. § 922(g)(1). He moved
to suppress the evidence found in what he contends was an
unconstitutional search under the Fourth Amendment. The
6 UNITED STATES V. KING
district court denied the motion, ruling that the warrant was
supported by probable cause and was sufficiently particular.
King then pleaded guilty and waived all constitutional and
statutory rights to appeal his conviction and sentence, but
reserved the right to appeal the order denying his motion to
suppress. Although his Guidelines calculation was
120 months, he was sentenced to 90-months imprisonment.
King now brings this appeal, again challenging the
validity of the search warrant. Specifically, he argues that
the warrant was overbroad—that there was only probable
cause for the silver and gold revolver, and no other firearms.
King also contends that the district court miscalculated his
sentence.
We review the validity of a search warrant, as well as the
validity and scope of an appeal waiver, de novo. United
States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013);
Davies v. Benov, 856 F.3d 1243, 1246 (9th Cir. 2017).
II.
A.
The Fourth Amendment commands that “no Warrants
shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S.
Const. amend. IV. From this command, we draw two
relevant principles.
The first is fundamental. A warrant must be supported
by probable cause—meaning a “fair probability that
contraband or evidence of a crime will be found in a
particular place based on the totality of circumstances.”
United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir. 2007)
UNITED STATES V. KING 7
(simplified). Put simply, it amounts to “circumstances
which warrant suspicion.” Locke v. United States, 11 U.S.
339, 348 (1813). And importantly, it requires “less . . .
evidence [than that] which would justify condemnation, and
may rest upon evidence which is not legally competent in a
criminal trial.” United States v. Bridges, 344 F.3d 1010,
1014–15 (9th Cir. 2003) (simplified).
The second principle is more technical. A warrant must
not be overbroad. The scope of a warrant must be limited by
its probable cause, United States v. SDI Future Health, Inc.,
568 F.3d 684, 702 (9th Cir. 2009), and must “never include
more than is covered” by that probable cause, United States
v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980).
A “magistrate’s determination of probable cause should
be paid great deference by reviewing courts.” Illinois v.
Gates, 462 U.S. 213, 236 (1983) (simplified). When a
magistrate has found probable cause, we do not “invalidate
the warrant by interpreting the affidavit in a hypertechnical,
rather than a commonsense, manner.” United States v.
Ventresca, 380 U.S. 102, 109 (1965). Our duty is limited to
ensuring that the magistrate had a “substantial basis” for
concluding that probable cause existed. Gates, 462 U.S. at
238 (simplified).
Applying these principles, we conclude that the warrant
here did not violate the Fourth Amendment. In the affidavit,
a police officer detailed his investigation, his training and
experience, and his suspicion that King was a felon in
possession. The affidavit noted that King had two prior
felonies: one for corporal injury to a domestic partner and
another for trafficking cocaine. Despite this criminal
history, the affidavit sets out that King took possession of the
“large silver & gold revolver” of unknown caliber shortly
after it was used in a violent domestic dispute. The officer
8 UNITED STATES V. KING
also explained how he suspected that other weapons might
be present at King’s residence since other “individuals [may]
arrive at the scene of [the] search” and that, in his experience,
“many of these individuals are found to be in possession of
weapons.” Moreover, the officer explained that, as a felon,
any firearm found in King’s possession would constitute
evidence of a felon-in-possession offense. The officer
expressed his belief that King was in violation of the felon-
in-possession statute.
These facts, taken together, provided the judge with a
substantial basis to authorize the broader search for “any
firearm.” That’s because there was a “fair probability” that
other firearms might be found at King’s home and they
would constitute evidence of a crime. Diaz, 491 F.3d
at 1078. The affidavit demonstrated that King took the
revolver to hide it from law enforcement for the domestic-
abuse suspect. By concealing the “silver & gold” firearm, it
raised the fair inference that King possessed other firearms.
After all, the suspect wouldn’t have entrusted the revolver to
King if the suspect didn’t believe King was willing and able
to covertly store firearms. That King seemingly served as a
“safe deposit box” for the suspect’s firearm made it likely
that King did the same for other firearms. Plus, King’s
criminal history meant that “any firearm” in his possession
was contraband and evidence of a crime. Considering all of
this, we see no violation of the Fourth Amendment in the
search and seizure here.
King believes that this case is controlled by Millender v.
County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010), rev’d
sub nom. Messerschmidt v. Millender, 565 U.S. 535 (2012).
While Millender begins, like this case, with a disturbing
incident of domestic abuse, that is the end of the similarity.
In that case, police sought a search warrant against the
UNITED STATES V. KING 9
domestic-abuse suspect, who had threatened the victim with
a “black sawed off shotgun” and fired the weapon at her. Id.
at 1020. Importantly, the victim provided police with a
photograph of the suspect with the firearm in question. Id.
at 1027. Based on these facts alone, the warrant authorized
“a search for essentially any device that could fire
ammunition, any ammunition, and any firearm-related
materials.” Id. at 1025. After the arrest of the suspect and
the search of his residence, the black shotgun was not found
but ammunition and a different shotgun were seized. Id. at
1022–23. In invalidating the warrant, we reasoned the
affidavit did not “set forth any evidence [that the suspect]
owned or used other firearms, that such firearms were
contraband or evidence of a crime, or that such firearms were
likely to be present.” Id. at 1025.
Unlike Millender, where the other firearm and
ammunition seized did not relate to the alleged crime or the
affidavit, the crime under investigation in this case
warranted a broader search. First, this was a felon-in-
possession investigation. As Millender recognized, “the
possession and purchase of guns by itself does not constitute
contraband or evidence of a crime.” Id. at 1030. But not in
this case. Any firearm possessed by King, as alleged in the
warrant, was unlawful and constituted criminal evidence.
Second, and relatedly, Millender authorizes “a broader
search warrant” when “the warrant establishes standards that
are sufficiently specific to reasonably guide the officers in
avoiding seizure of protected property.” Id. at 1025
(simplified). By setting forth that this was a felon-in-
possession investigation, officers were reasonably guided
that “any firearm” was not “protected property” but instead
subject to search and seizure. Third, Millender authorizes “a
search for classes of generic items if the government was not
able to describe the items more particularly in light of the
10 UNITED STATES V. KING
information available.” Id. at 1026 (simplified). That
principle didn’t apply in Millender since the victim provided
the police with a picture of the precise weapon sought. Id.
at 1027. Here, the police only knew the generic colors of the
revolver and, in any case, all firearms found during the
search would be pertinent to its investigation. Finally,
Millender rested principally on the lack of allegations to
support probable cause that other “firearms were likely to be
present” at the place to be searched. Id. at 1025. Here, the
affidavit alerted the judge that King had concealed someone
else’s firearm after it was used in a violent domestic-abuse
incident. Such evidence permits the inference that King may
conceal or possess other firearms and makes it likely that
they would be present at his residence. Accordingly,
Millender doesn’t control this case.
The same is true of King’s reliance on United States v.
Nora, 765 F.3d 1049 (9th Cir. 2014). First off, we applied a
different standard of review in that case because we found
some of the evidence used to obtain the warrant was
unlawfully tainted. 765 F.3d at 1058 (treating the warrant
“without the usual deference owed to the magistrate’s initial
finding of probable cause”). Second, we found that the only
untainted evidence supporting the warrant was the officers’
observation of the suspect with the firearm and his prior
criminal history. Id. at 1058. “[W]ithout more,” we held,
“the officers’ firsthand observations of Nora with a gun in
his hand did not give them reasonable grounds to believe that
any additional firearms would be found in the house.” Id. at
1059. There’s more than that here. As stated, King was
reported to have received and concealed a firearm for
another person; that establishes “a fair probability” that King
“owned [or possessed] other firearms.” Id. We doubt that
the domestic-abuse suspect would have given the firearm to
someone completely inexperienced in possessing firearms,
UNITED STATES V. KING 11
especially a firearm that was just used in a crime. It’s fair to
think that serving as an illicit depository of another person’s
firearm makes King’s possession of other firearms likely.
Unlike the warrants in Nora and Millender, we see no
absence of probable cause here. While we cannot
“mechanically reason that some implies more,” United
States v. Weber, 923 F.2d 1338, 1344 (9th Cir. 1990), we
conclude that the warrant here sufficiently justified the
search for and seizure of “any firearm.”
B.
Even though the warrant complied with the Fourth
Amendment, the good-faith exception also justifies denying
the suppression motion here. Under that exception, evidence
seized under a later-invalidated warrant is admissible if the
“officers conducting the search acted in good faith and in
reasonable reliance on the warrant.” United States v. Kow,
58 F.3d 423, 428 (9th Cir. 1995). The exception doesn’t
apply, conversely, if the officers’ conduct showed
“deliberate, reckless, or grossly negligent disregard for
Fourth Amendment rights.” Davis v. United States, 564 U.S.
229, 238 (2011) (simplified). The central question is
“whether a reasonably well trained officer would have
known that the search was illegal despite the magistrate’s
authorization.” United States v. Leon, 468 U.S. 897, 922
n.23 (1984).
Here, it’s plain that reasonably well-trained officers
would not have known that the search of King’s residence
for “any firearm” was in legal doubt. Specifically, the
affidavit established that the police were conducting a felon-
in-possession investigation, and that King had been
convicted of a serious violent felony and drug trafficking. It
further described that King concealed a firearm used in
12 UNITED STATES V. KING
another violent offense. Given this, we can’t say that
officers should have questioned the judge’s authorization to
search for and seize all firearms, since any gun constituted
illegal contraband and evidence of a crime in the hands of
King.
Indeed, in the decision reversing our qualified immunity
holding in Millender, the Court held that fewer facts—the
possession and use of a gun by a gang-affiliated suspect in
an assault investigation—was enough to justify the officers’
execution of a warrant to broadly seize all firearms.
Messerschmidt, 565 U.S. at 549. Under “the particular
circumstances of [that] case,” the Court found that “it would
not have been unreasonable for an officer to conclude that
there was a ‘fair probability’ that the sawed-off shotgun was
not the only firearm [the suspect] owned.” Id. at 548–49.
Here, more allegations support a search for multiple
firearms, especially King’s willingness to harbor firearms.
We, therefore, affirm the district court’s denial of the motion
to suppress.
III.
A.
King also attacks his career-offender sentence
enhancement. But King is precluded from raising these
arguments in this court. It is well settled that a defendant
may waive his constitutional rights, including the right to
appeal, as a part of plea negotiations. United States v.
Navarro-Botello, 912 F.2d 318, 321 (9th Cir. 1990). We
enforce the plain language of an appellate waiver when two
criteria are met. First, the language of the agreement must
cover the grounds of the appeal. United States v. Lo,
839 F.3d 777, 783–84 (9th Cir. 2016). Second, the waiver
must have been knowingly and voluntarily made. Id. The
UNITED STATES V. KING 13
defendant bears the burden of showing that the plea
agreement was not knowing and voluntary. See United
States v. Michlin, 34 F.3d 896, 900 (9th Cir. 1994) (holding
that the defendant’s appellate waiver was effective because
he “failed to show that his plea was not knowing and
voluntary”).
Here, King’s claim challenging his sentence was within
the scope of the plea agreement. The appellate waiver
explicitly precludes King from appealing his conviction and
sentence and, aside from some inapplicable exceptions, the
provision only allows him to challenge the suppression
motion on appeal.
King also hasn’t shown that the waiver was not knowing
and voluntary. First, the record belies King’s assertion that
his plea colloquy was insufficient under Rule 11 or that the
district court did not properly inform him of his appellate
waiver. Under Federal Rule of Criminal Procedure
11(b)(1)(N), the district court must inform a defendant of the
terms of any appellate waiver in the plea agreement. Lo, 839
F.3d at 784. But technical noncompliance with that
requirement is not enough to invalidate a plea under plain
error review; when the record as a whole shows that the
defendant otherwise waived his appellate rights knowingly
and voluntarily, we will not find such error. Id.
No violation occurred here—technical or otherwise. At
his change-of-plea hearing, King confirmed that he went
through the plea agreement with his attorney, that he had all
of his questions answered, and that he understood he was
giving up his right to appeal except for the motion to
suppress. The district court also ensured that King wasn’t
threatened or forced into pleading guilty or offered any other
promises in exchange for his plea. It further emphasized that
14 UNITED STATES V. KING
King was giving up his rights “permanently.” Accordingly,
we find no Rule 11(b)(1) violation.
Second, it does not matter, as King claims, that he didn’t
know the specific arguments he could make on appeal to
attempt to lower his Sentencing Guidelines range. Although
the plea agreement contained a non-binding, estimated base-
offense level of 26, King contends that his defense counsel
had valid arguments to seek an offense level of 20. But that
a defendant does not know the possible grounds of appeal
does not render his appellate waiver unknowing or
involuntary. See Navarro-Botello, 912 F.2d at 320(explaining that the defendant “knew he was giving up
possible appeals, even if he did not know exactly what the
nature of those appeals might be”). Indeed, King was
specifically informed of the maximum penalties for his
offense and that the district court has no obligation to follow
the parties’ agreement in the plea or the Guidelines range at
all. The plea agreement also established a preliminary
Guidelines sentencing range of 92 to 115 months. Given this
information, King elected to proceed with the plea and the
appellate waiver. While he may regret that decision now
(even though he received a sentence below the estimated
Guidelines range), that doesn’t make his plea unenforceable.
As we have said, “[j]ust because [a] choice looks different to
[a defendant] with the benefit of hindsight, does not make
the choice [unknowing or] involuntary.” Id.B.
King lastly urges us to allow him to withdraw his plea
and enter a new agreement preserving his right to appeal his
sentence because the district court violated Rule 11(c)(1) by
participating in his plea negotiations.
UNITED STATES V. KING 15
As a threshold matter, the government contends that this
claim is subsumed by his appellate waiver and we have no
jurisdiction to consider it. We disagree. The failure to
comply with Rule 11(c)(1) may be reason not to enforce an
appellate waiver. See United States v. Brizan, 709 F.3d 864,
866 (9th Cir. 2013); see also United States v. Myers,
804 F.3d 1246, 1254 (9th Cir. 2015) (analyzing whether the
district court violated Rule 11(c)(1) despite appellate
waiver); United States v. Gonzalez-Melchor, 648 F.3d 959,
962 (9th Cir. 2011) (same). We, thus, proceed to consider
this claim. But because King did not raise this concern in
the district court, we review it for plain error. Myers,
804 F.3d at 1256. That means King must show there’s been
an error that is plain and that affected his substantial rights.
Id. at 1256. To satisfy this standard, King must demonstrate
a reasonable probability that, but for the Rule 11(c)(1) error,
he would not have entered the plea. Id.
Rule 11 prohibits the district court from participating in
plea negotiations. Fed. R. Crim. P. 11(c)(1). Given the
“unequal positions” between the judge and the accused, any
degree of judicial involvement in plea negotiations raises
“question[s] of fundamental fairness.” United States v.
Bruce, 976 F.2d 552, 557 (9th Cir. 1992), abrogated on
other grounds by United States v. Davila, 569 U.S. 597(2013) (simplified). As we have said, Rule 11(c)(1) prevents
defendants from being coerced to plead guilty, protects the
integrity of the judicial process, and preserves the court’s
impartiality. United States v. Kyle, 734 F.3d 956, 963 (9th
Cir. 2013). Rule 11(c)(1), thus, prohibits courts from
“comment[ing] on the hypothetical agreements it would or
would not accept.” Id. (simplified). In particular, a “judge’s
active participation in appellate-waiver negotiations [is]
inherently coercive” given the judge’s discretionary
sentencing authority. Gonzalez-Melchor, 648 F.3d at 964.
16 UNITED STATES V. KING
King points to two occasions of alleged participation:
(1) the district court held an off-the-record sidebar
conference on King’s plea negotiations and then granted a
one-week continuance so the government could seek
approval of a conditional plea allowing King to appeal the
suppression motion; and (2) one week later, the district court
inquired why King had reservations about accepting the
government’s conditional plea. 1
Neither of these instances exhibit inappropriate judicial
pressure on plea negotiations. First, the district court offered
the continuance after being informed that King was close to
pleading guilty, but that his defense counsel mistakenly
advised him that proceeding to trial was the only way to
preserve his ability to challenge the suppression motion. The
week-long continuance allowed the parties to research and
seek a conditional plea without King having to endure a
seemingly unwanted trial. Nothing in the record shows the
district court applied pressure on the parties to reach any
agreement. Regarding the second instance, the district court
simply responded to King’s counsel’s suggestion that he
might plead “straight up” [i.e., without a plea agreement]
rather than accept the government’s conditional plea. The
district court noted that King “can do whatever he wants,”
but that the court wanted to “know the thinking behind it.”
After King mentioned that he was not satisfied with the
government’s 92-month recommendation, that was the end
of it.
1
The exact question was: “why would he not accept an offer of a
deal because obviously the advantage there is that the government makes
the recommendation and oftentimes joins in the same recommendation
that defense does. You don’t want that?”
UNITED STATES V. KING 17
We cannot describe either of these two instances as
improper participation by the district court. This is not the
situation of the district court encouraging the defendant to
plead guilty, committing itself to a particular type of
sentence, or requiring a certain plea term. See Kyle, 734 F.3d
at 965. Nothing in the court’s actions raises the specter of
coercion or risks the court’s integrity or impartiality. Indeed,
Rule 11(c)(1) doesn’t hamstring judges from engaging in
commonplace interactions with defendants, managing its
dockets, or asking legitimate questions. As long as these
exchanges don’t cross the line into giving an express or
implied judicial imprimatur on plea terms, we will not
discard an otherwise acceptable plea agreement.
Moreover, King cannot show that the judge’s
interactions affected his substantial rights. See id. at 966.
Before either of these exchanges, King made clear that he
wanted to plead guilty, but also wanted to retain his right to
appeal the suppression motion. Before the second
interaction, King’s attorney alerted the judge that “Mr. King
will enter a plea to the charge.” And although King was
considering pleading “straight up,” counsel stated that
“either way” he was “admitting responsibility.” King then
told the judge that the government was only offering a
recommended sentence of 92 months when the maximum
penalty was ten years—not “much of a difference” in King’s
view. None of this indicates that King would have pleaded
differently or gone to trial but for the district court’s
questions. Instead, King “reached a favorable plea
agreement with the government, avoided trial, and received
a below-Guidelines sentence.” Myers, 804 F.3d at 1258
(finding the defendant couldn’t show a reasonable
probability of a different outcome under these facts). Thus,
the record does not demonstrate the district court’s actions
affected King’s substantial rights.
18 UNITED STATES V. KING
IV.
The district court’s denial of King’s motion to suppress
is AFFIRMED, and the remainder of his appeal is
DISMISSED.