United States v. Jesus Valencia-Reuvelta

FILED
NOT FOR PUBLICATION MAY 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30286
Plaintiff - Appellee, D.C. No. CR-08-05603-TSZ
v.
MEMORANDUM *
JESUS VALENCIA-REUVELTA
Defendant - Appellant,
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted May 7, 2010
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW and GOULD, Circuit Judges, and WARE **, District Judge.
Jesus Valencia-Reuvelta appeals his February 12, 2009 conviction by jury
verdict of possession of marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(D), and 18 U.S.C. § 2, and possession of a firearm by an illegal alien, 18
U.S.C. §§ 922(g)(5), 924(a)(2). On appeal, Valencia contends (1) that he did not
voluntarily give consent to four law enforcement officers to search a residence at
23917 Northwest Maplecrest Road (“the Maplecrest Residence”), and that even if
he had voluntarily given consent, the officers’ search exceeded the reasonable
scope of that consent; (2) that the district court erred when it declined to clarify,
upon the jury’s request, the meaning of the word “intention” in the district court’s
instruction on possession; and (3) that the district court committed procedural error
when it enhanced Valencia’s Guidelines offense level by two levels since the jury’s
verdict only addressed one of four firearms found in the Maplecrest Residence.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 18 U.S.C. § 3742.
We affirm the conviction, vacate the sentence, and remand to the district court to
recalculate the sentence without the enhancement for possession of multiple
firearms.
**
The Honorable James Ware, United States District Judge for the
Northern District of California, sitting by designation.
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A. Voluntary Consent to Search of the Residence
We review the district court’s denial of a motion to suppress de novo, United
States v. McWeeney, 454 F.3d 1030, 1033 (9th Cir. 2006), and the district court’s
underlying factual finding that a person voluntarily consented to search for clear
error, United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004).
Although a warrantless search conducted pursuant to valid consent is
constitutionally permissible, the government bears the burden of proving that such
consent was given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S.
218, 222 (1973). We apply a multi-factor fact-intensive test to determine whether
a person has given free and voluntary consent to conduct a search and do not place
dispositive weight on any single criterion. United States v. Perez-Lopez, 348 F.3d
839, 846 (9th Cir. 2003); United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir.
2000).
Here, the district court credited the testimony of two agents that Valencia
responded affirmatively when asked in his native language whether he consented
to a search of the Maplecrest Residence. The district court also relied on evidence
that the agents had not used other coercive tactics, such as drawing their guns or
threatening to obtain a search warrant. Further evidence demonstrated that, after
receiving Miranda warnings in his native language, Valencia verbally consented to
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continue the search after guns and marijuana were found, although he declined to
sign a written consent form. Because there was persuasive evidence supporting a
finding of voluntary consent, we affirm the district court’s denial of the motion to
suppress evidence gleaned from the search of the Maplecrest Residence.1
B. Failure to Give Clarifying Jury Instruction
We review a district court’s response to a jury question for abuse of
discretion. Arizona v. Johnson, 351 F.3d 988, 993 (9th Cir. 2003). We have held
that “when a jury makes explicit its difficulties by, for example, asking a question,
the trial court should clear the jury’s difficulties away with concrete accuracy.” Id.
at 994. However, “the precise manner by which the court fulfills this obligation is
a matter committed to its discretion.” Id. A district court does not abuse its
discretion simply because it refers the jury back to the instructions they had already
been given. Id. at 995.
1
Valencia contends that the search exceeded the scope of any consent he
may have given. However, Valencia did not challenge the scope of the search at
trial, except in a passing reference contained in a listing of the elements of a valid
consensual search. We have held on multiple occasions that “just as failure to file
a timely motion to suppress evidence constitutes a waiver, so too does a failure to
raise a particular ground in support of a motion to suppress.” E.g., United States v.
Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). Thus, we conclude that Valencia
has waived any challenge to the validity of the scope of the search.
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Here, the jury’s request for clarification of the word “intention” in the
court’s instruction on possession did not indicate any actual misunderstanding of
the elements necessary to convict Valencia. Because the word intention was meant
to carry its ordinary meaning, any danger that the jury would fail to correctly
interpret the term was negligible. For that reason, Valencia’s proposal to provide
the jury with a definition of intent taken from Washington Criminal Instruction
10.01 would not have clarified the original instruction but rather would have added
new and incorrect elements to the possession charge, further confusing the jury.
Thus, we conclude that the district court did not abuse its discretion when it
declined to further clarify the meaning of the word intention in response to the
jury’s request.
C. Sentence Enhancement for Multiple Firearms
We review “the district court’s interpretation of the Sentencing Guidelines
de novo, the district court’s application of the Sentencing Guidelines to the facts of
this case for abuse of discretion, and the district court’s factual findings for clear
error.” United States v. Stoterau, 524 F.3d 988, 997 (9th Cir. 2008). “The
government bears the burden of proving, by a preponderance of the evidence, the
facts necessary to enhance a defendant’s offense level under the Guidelines.”
United States v. Guzman-Mata, 579 F.3d 1065, 1072 (9th Cir. 2009).
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The Guidelines provide that if an offense involved between three and seven
firearms, a two-level increase in the offense level is appropriate. U.S.S.G. §
2K2.1(b)(1)(A). The Application Note to Section 2K2.1(b)(1) states: “For
purposes of calculating the number of firearms under subsection (b)(1), count only
those firearms that were unlawfully sought to be obtained, unlawfully possessed, or
unlawfully distributed . . . .”
Here, the jury based its verdict on Valencia’s possession of only one firearm,
a .380 semi-automatic handgun. Evidence at trial showed that three additional
firearms were found in the search of the Maplecrest Residence: a .9mm handgun
and a 12-gauge shotgun in the converted attic bedroom, and a .22 caliber rifle in
the garage. However, the evidence strongly indicated that several other individuals
were living in the same residence. In fact, the passport, social security card, and
temporary driver’s license of a person named Jairo Arevalos Silva were found in a
black duffel bag in the converted attic bedroom close to the .9mm handgun. The
agents also discovered that Mr. Silva was the owner of the red pickup truck found
in the garage near the .22 caliber rifle.
We hold that Valencia’s mere proximity to the additional firearms and his
presence on the property where they were found is insufficient to establish
constructive possession. See United States v. Carrasco, 257 F.3d 1045, 1049 (9th
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Cir. 2001). Valencia’s claim of an ownership interest in the red pickup truck,
which could conceivably connect him to the .22 caliber rifle found in the garage,
can only support a finding of possession of one additional firearm, which falls
short of the three firearms needed to add the two-level increase under the
Sentencing Guidelines.
In light of the paucity of the evidence, we conclude that the district court
clearly erred by finding that Valencia exercised dominion or control over the three
additional firearms and thus abused its discretion by adding a sentence
enhancement under Section 2K2.1(b)(1)(A). Accordingly, we vacate Valencia’s
sentence and remand to the district court to recalculate the sentence without the
two-level increase.
CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED
FOR RESENTENCING.
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