United States v. Guillermo Gabriel Aguilar

519 F. App'x 541
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 22, 2013
Docket12-13374
StatusUnpublished

This text of 519 F. App'x 541 (United States v. Guillermo Gabriel Aguilar) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Guillermo Gabriel Aguilar, 519 F. App'x 541 (11th Cir. 2013).

Opinion

PER CURIAM:

Guillermo Aguilar appeals his convictions for one count of possession of firearms by an illegal alien in violation of 18 U.S.C. § 922(g)(5)(A) (“Count One”), one count of possession with intent to distribute a detectable amount of cocaine in violation of 21 U.S.C. § 841(a)(1) (“Count Two”), and one count of possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)® (“Count Three”). Aguilar also appeals the substantive reasonableness of his 93-month sentence.

After being indicted, Aguilar filed a motion to suppress evidence seized in violation of the Fourth Amendment as a result of a warrantless and consentless search of his home on December 29, 2010, that tainted the search pursuant to a state warrant on April 22, 2011. The district court found *543 that, on December 20, 2010, the U.S. Marshals, who were looking for a fugitive in an unrelated case, entered Aguilar’s home with his consent and subsequently conducted a protective sweep. The district court denied Aguilar’s motion to suppress on this ground. Further, the district court held that the warrant would stand even without Aguilar’s consent and the information from the December 2010 search because the supporting affidavit also contained (1) the information from the U.S. Marshals before their entry into Aguilar’s home, including that he had multiple surveillance cameras on the outside of his house and the fact that Aguilar was nervous when he answered the door; (2) the North Miami Police Department (“NMPD”), operating on an unrelated tip, observed buys from Aguilar in October 2010; and (3) the NMPD orchestrated three controlled buys from Aguilar in March and April 2011. This information constituted probable cause for the search warrant even without the information obtained from the December 2010 search.

After a trial, the jury found Aguilar guilty on all three counts. At sentencing, Aguilar requested a downward variance based on multiple health and emotional issues and the five-year minimum for Count Three. The court sentenced Aguilar to 33 months as to Counts One and Two, to run concurrently, and 60 months as to Count Three, to run consecutively.

On appeal, Aguilar argues that (1) the district court erred by denying his motion to suppress evidence and finding that the December 2010 search of his residence was lawful pursuant to voluntary consent and that the April 2011 search of his residence was lawful pursuant to a valid state search warrant; (2) the district court erred by denying Aguilar’s motion for a judgment of acquittal as to Count Three and finding that the evidence showed possession of a firearm “in furtherance of’ a drug-trafficking offense; (3) his within-guidelines sentence was not substantively reasonable; and (4) the jury was required to rule on facts that would allow more than a minimum sentence to be imposed, based on the pending decision of the Supreme Court in United States v. Alleyne, 457 Fed.Appx. 348 (4th Cir.2011), cert. granted, — U.S. -, 133 S.Ct. 420, 184 L.Ed.2d 252 (Oct. 5, 2012).

Following review of the record and consideration of the parties’ briefs, we affirm.

I.

We review the denial of a motion to suppress as a mixed question of law and fact, reviewing legal questions de novo and factual questions for clear error. United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.2002). The district court is in a better position to judge the credibility of witnesses before it, and we will not disturb the court’s findings of fact unless its understanding of those facts appears “unbelievable.” Id. at 749. We may consider evidence presented at both the hearing on the motion to suppress and at the trial, United States v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th Cir.1995), and the denial of a motion to suppress may be affirmed on any ground supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir.2010). Similarly, we review de novo whether probable cause existed to support a search warrant, although we “take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” United States v. Martinelli, 454 F.3d 1300, 1306 (11th Cir.2006) (quotation omitted).

Generally, under the law of the Fourth Amendment, a search of the home or office is not reasonable without a warrant issued *544 on probable cause. Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 1096-97, 108 L.Ed.2d 276 (1990). The Supreme Court found in Buie, however, that a protective sweep may be lawfully undertaken pursuant to an in-house arrest where the officer “possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 337,110 S.Ct. at 1099-100.

A second exception to the Fourth Amendment is a search conducted pursuant to voluntary consent. United States v. Garcia, 890 F.2d 355, 360 (11th Cir.1989). Consent is voluntary if it is “the product of an essentially free and unconstrained choice.” Id. The government bears the burden of proving that consent was voluntary. United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir.1984). The totality of the circumstances must be considered when reviewing the voluntariness of consent. Id. Although no one factor is dispos-itive, we may consider factors such as the

voluntariness of the defendant’s custodial status, the presence of coercive police procedure, the extent and level of the defendant’s cooperation with police, the defendant’s awareness of his right to refuse to consent to the search, the defendant’s education and intelligence, and, significantly, the defendant’s belief that no incriminating evidence will be found.

Id. (quotation omitted). We determine whether an individual has sufficient comprehension of the English language to provide voluntary consent by examining the suspect’s ability to interact intelligently with the police. United States v. Zapata, 180 F.3d 1237, 1242 (11th Cir.1999).

In United States v. Tovar-Rico,

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United States v. Robert Chemaly
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United States v. Juan Jose Garcia
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Bluebook (online)
519 F. App'x 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-guillermo-gabriel-aguilar-ca11-2013.