United States v. Carlos Navarro

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2018
• Docket: 17-30236
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30236

Plaintiff-Appellee, DC No. 1:17-cr-02025-LRS-1

v. MEMORANDUM* CARLOS NAVARRO, AKA Scorpion,

Defendant-Appellant.

Appeal from the United States District Court For the Eastern District of Washington Lonny R. Suko, District Judge, Presiding

Submitted November 7, 2018** Seattle, Washington

Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON, *** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. Appellant appeals the district court’s denial of a motion to suppress,

application of a sentencing enhancement, and imposition of supervised release

conditions that burden Appellant’s right to familial association.1 Appellant was

arrested on June 2, 2017, in Yakima, Washington, in connection with an alleged

gang-related drug transaction. Appellant was ultimately charged with and pled

guilty to being a Felon in Possession of a Firearm and Ammunition, and sentenced

to a 51-month term of imprisonment. 18 U.S.C. § 922(g)(1). Over Appellant’s

objection, the court imposed, among others, two no-contact conditions: (1)

requiring Appellant to refrain from knowingly communicating or interacting with

someone engaged in criminal activity, and requiring permission from his probation

officer to knowingly communicate with a convicted felon; and (2) requiring

Appellant to refrain from knowingly communicating, associating, or interacting

with any street gang member or affiliate without permission from his probation

officer. Appellant objected to these conditions, because as written, they prohibit

contact with his children. We have jurisdiction under 28 U.S.C. § 1291, and for the

reasons that follow, we affirm in part and vacate in part, and we remand for the

1 Appellant also seeks to preserve the issue of whether his Washington state felony conviction for harassment – threat to kill qualifies as a crime of violence. Appellant concedes that the district court’s treatment of that felony conviction was correct under existing Ninth Circuit precedent. See United States v. Werle, 877 F.3d 879, 884 (9th Cir. 2017), cert. denied, 138 S. Ct. 1578 (2018).

2 district court to reconsider the no-contact conditions.

We review de novo the district court’s denial of a motion to suppress, but

review the underlying factual findings for clear error. United States v. Mohamud,

843 F.3d 420, 432 (9th Cir. 2016), cert. denied, 138 S. Ct. 636 (2018). We review

the district court’s application of the United States Sentencing Guidelines

(“Guidelines”) for abuse of discretion. United States v. Noster, 590 F.3d 624, 634

(9th Cir. 2009). When trial counsel objects to conditions of supervised release set

by the district court, we review for abuse of discretion, and we review carefully

conditions impacting fundamental rights. United States v. Napulou, 593 F.3d 1041,

1044 (9th Cir. 2010); United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988).

Appellant contends that the district court erred in holding that Officer Chad

Urwin (“Officer Urwin”) legally stopped him.2 An officer may conduct a brief

investigatory stop where the officer has reasonable, articulable suspicion that an

individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968).

Courts look at the totality of circumstances to determine whether an officer

reasonably suspected criminal activity. United States v. Arvizu, 534 U.S. 266, 273

(2002). While there is no comprehensive list of factors, whether a group of

individuals is potentially behaving as a unit and whether a stop occurred in a

2 The court found that Appellant was “seized” within the Fourth Amendment when Officer Urwin instructed Appellant to step outside and place his hands atop the sedan. The Government did not cross-appeal this portion of the order.

3 “high-crime area” are both relevant considerations. See Lyall v. City of L.A., 807

F.3d 1178, 1194–95 (9th Cir. 2015); Illinois v. Wardlow, 528 U.S. 119, 124

(2000). Officers may also make inferences that draw upon their specialized

training and experience in the field. Arvizu, 534 U.S. at 273. Here, Officer Urwin

did just that.

Officer Urwin was aware of the following set of facts when he decided to

stop Appellant: (1) Appellant was in a high-crime area—a place where Officer

Urwin had participated in at least 75 arrests; (2) an apparent “hand to hand” drug

deal occurred between two males located next to a van, which seemed to be

deliberately parked adjacent to Appellant’s Dodge Neon sedan; (3) Appellant was

standing just outside the sedan’s passenger door, slightly behind a group of men

who were standing outside the van’s open door; (4) three males in the group—

including Appellant—were dressed in red attire, which is associated with the

Norteño gang. Looking at the totality of the circumstances, including Officer

Urwin’s specialized training and experience, Officer Urwin had reasonable

suspicion to detain Appellant.

Appellant additionally argues that the district court erred in adopting Officer

Urwin’s statement that the Yakima Inn (the “Inn”) was located in a “high-crime

area.” But Appellant’s reliance on United States v. Montero-Camargo undercuts

his argument because the court did carefully examine both Officer Urwin’s

4 testimony and relevant evidence—including testimony from the manager of the

Inn,3 and Deputy United States Marshal Christopher Smith (“Deputy Smith”)—to

determine that the descriptor “high-crime” was “fair and forthright.” 208 F.3d

1122, 1138 (9th Cir. 2000) (en banc).

Appellant argues that Deputy Smith lacked reasonable suspicion to frisk

him. Where an officer reasonably believes that he is dealing with an armed and

dangerous individual, regardless of whether he has probable cause to arrest the

individual for a crime, the officer can conduct a reasonable search for weapons.

Terry, 392 U.S. at 27. An officer’s search must be reasonable both at its inception

and as conducted; even in high-crime areas, Terry demands individualized

suspicion under the totality of the circumstances. Id. at 27–28; Thomas v. Dillard,

818 F.3d 864, 877 (9th Cir. 2016). Here, Deputy Smith drew upon his personal

experience and personal knowledge of Appellant’s gang membership and criminal

history and observations of Appellant’s furtive movements inside the sedan. See

United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983). Deputy Smith therefore

reasonably suspected that Appellant was armed and dangerous and permissibly

frisked him.

Appellant argues that the district court abused its discretion by applying the

3 The manager, who has worked at the Inn for nine years, testified that the Inn frequently experiences issues that require police response.

5 four-level increase for use or possession of a firearm in connection with another

felony offense. U.S. Sentencing Guidelines Manual (“USSG”) § 2K2.1(b)(6)(B)

(U.S. Sentencing Comm’n 2018). Section 2K2.1(b)(6)(B) applies if the firearm or

ammunition facilitated (or had potential to facilitate) another felony offense.4 See

USSG § 2K2.1 cmt. n.14(A) (U.S. Sentencing Comm’n 2018). Possession of

methamphetamine is a class B felony in Washington State, and the proximity of

the firearm to the methamphetamine permits an inference that possession of the

firearm potentially emboldened the possession of the methamphetamine. United

States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994) (“[T]o the extent that the

government relies upon physical possession, it must show that the firearm was

possessed in a manner that . . . had some potential emboldening role . . . in a

defendant’s felonious conduct.”); Wash. Rev. Code § 69.50.401(2)(b) (2015); see

also United States v. Valenzuela, 495 F.3d 1127, 1135 (9th Cir. 2007) (explaining

that where defendant had a firearm under his seat, the firearm could have

reasonably emboldened his possession of stolen property). Appellant kept the

firearm in an easily accessible location—his waistband—while out in public. See

Routon, 25 F.3d at 819; Valenzuela, 495 F.3d at 1135. And the proximity of the

4 “Another felony offense” includes “any Federal, state, or local offense . . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” USSG § 2K2.1 cmt. n.14(C) (U.S. Sentencing Comm’n 2018).

6 firearm to the two bindles of methamphetamine—one bindle was on a keychain on

Appellant’s person and the other was inside his shirt pocket—confirms that the

court did not abuse its discretion in applying the four-level increase.

Finally, as his sons are members of the Norteño gang (one of whom is

currently in jail facing felony charges), Appellant argues that the district court must

support its decision to impose the no-contact conditions on the record with record

evidence and comply with heightened procedural safeguards. See United States v.

Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008). Where conditions of supervised

release implicate a “particularly significant liberty interest,” the district court must

justify its imposition of the condition on the record with record evidence that the

condition is necessary to accomplish one or more of the factors listed in

18 U.S.C. § 3583(d)(1), and explain why it involves no greater deprivation of

liberty than is reasonably necessary. United States v. Weber, 451 F.3d 552, 561

(9th Cir. 2006). And when a condition affects the right to familial or intimate

association, “the district court must ‘undertake an individualized review’ on the

record of the relationship between the defendant and the family member at issue to

determine whether the restriction is necessary to accomplish the goals of

deterrence, protection of the public, or rehabilitation.” United States v. Wolf Child,

699 F.3d 1082, 1090 (9th Cir. 2012) (citing Napulou, 593 F.3d at 1047);

Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (“The substantive

7 due process right to . . . familial association is well established.”). It is not enough

that a reviewing court may assemble such evidence from its own review of the

record, and the court’s failure to comply with heightened procedural requirements

cannot be remedied by delegating authority to a probation officer to mitigate the

severity of the limiting condition by allowing contact with family members. Wolf

Child, 699 F.3d at 1092, 1095–96.

Here, the district court committed procedural error. While it is clear that the

court did not intend to preclude contact between Appellant and his sons, the court

failed to satisfy the explicit requirement of on-the-record individualized findings

and justifications for the no-contact conditions that it nevertheless imposed. See

Napulou, 593 F.3d at 1047; Stoterau, 524 F.3d at 1005. As written, the no-contact

conditions violate Appellant’s substantive due process rights. See Rosenbaum, 663

F.3d at 1079. Accordingly, we vacate those conditions and remand to the district

court with instructions either to make the required findings and justifications for

the no-contact conditions, or, alternatively, to carve out an exception to the no-

contact conditions that allows Appellant to interact with his sons.

AFFIRMED in part, and VACATED and REMANDED in part.