United States v. Torre

224 F. App'x 626

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 8, 2007
• Docket: No. 04-50341
• Status: Published

Opinion

MEMORANDUM

**

Angel Barba De La Torre appeals his conviction and sentence for conspiracy to aid and abet the manufacture of methamphetamine, in violation of 21 U.S.C. § 846.

Barba argues that the district court erred by refusing to suppress evidence obtained from the February 7 and February 10 searches, but both of the underlying warrant affidavits set forth a substantial basis to support the magistrate’s finding of probable cause. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The affidavits recounted a pattern of conduct consistent with the operation of a methamphetamine lab and “most surely would create a high level of suspicion in a trained and experienced officer, on whose suspicions the magistrate was entitled to rely.” United States v. Ocampo, 937 F.2d 485, 490 (9th Cir.1991). The affiant also provided sufficient details to show there was “a reasonable nexus” between the criminal activity and the place to be searched. Id.

Barba also argues that, notwithstanding his appeal waiver, he is entitled to a limited remand pursuant to United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir. 2005) (en banc), because the district court sentenced him under the then-mandatory Guidelines. Barba conditioned his waiver on the constitutionality of his sentence, but the district court’s treatment of the Guidelines as mandatory is a nonconstitutional error, see id. at 1084, and the objection Barba raises is not otherwise beyond the scope of an appeal waiver, see United States v. Cortez-Arias, 403 F.3d 1111,1114 n. 8 (9th Cir.2005), as amended, 425 F.3d 547, 547-18 (9th Cir.2005). We therefore dismiss his sentencing appeal.

AFFIRMED IN PART; DISMISSED IN PART.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.