United States v. Ontiveros , 550 F. App'x 624 ( 2013 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 20, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 12-1354
(D.C. No. 1:11-CR-00214-PAB-1)
TITO ONTIVEROS, (D. Colo.)
Defendant – Appellant.
ORDER AND JUDGMENT*
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and PHILLIPS,
Circuit Judge.
A jury convicted Appellant Tito Ontiveros on two counts charging firearms
violations: first, felon in possession of a firearm under 18 U.S.C. § 922(g)(1); and,
second, possession of an unregistered firearm under 26 U.S.C. §§ 5861(d). After
finding that Ontiveros qualified as an armed career criminal under 18 U.S.C. §
924(e), the district court sentenced him to 262 months in prison on the first count and
a concurrent term of 120 months on the second. On appeal, Ontiveros raises three
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
challenges to his conviction and sentence: (1) that the district court violated his Sixth
Amendment right to counsel; (2) that the court erred in denying his motion to
suppress the evidence obtained under the search warrant; and (3) that the court
imposed upon him a substantively unreasonable sentence. Exercising jurisdiction
under 28 U.S.C. § 1291, we reject those challenges and affirm the decisions of the
district court.
I. Background
A. The Search Warrant
Tito Ontiveros (a.k.a. “T”) lived in the detached garage of a house belonging
to his sister and brother-in-law. Based largely on criminal investigations and
information provided by witnesses and individuals, law enforcement began to suspect
that Ontiveros might be using the garage for various criminal activities—including
the sale of stolen property and illegal drugs. This information came from a variety of
sources over the course of several months.
As early as 2009, an informant had told police that Ontiveros was selling
stolen televisions from his garage. In 2010, law enforcement investigated an
unrelated crime, this time a burglary. The main suspect said that he could not have
committed the burglary because he had been helping Ontiveros close off his garage
door opening when the crime was committed. But Ontiveros was also a friend of the
burglary victim. In their continued investigation, officers learned that the suspect had
left the stolen property in another woman’s control. That woman informed police that
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the suspect and “T” or “Tito” had later held her at gunpoint to recover the same
stolen property the suspect had previously taken. She claimed “T” and the suspect
used methamphetamine during the recovery. Despite allegedly recovering the stolen
property, the suspect was later charged with the burglary in state court. The police
were unable to substantiate the woman’s claims.
In October 2010, the police obtained information from an individual claiming
that a man named “T” was selling methamphetamine from a garage containing “lots
of guns, including AK 47s.” R. vol. 1, at 94. During the same investigation, yet
another person told the police that “Tito” was selling methamphetamine. The police
determined that the information referred to Ontiveros and his garage.
In January 2011, an officer stopped a car registered to Ontiveros’s mother that
police knew he drove regularly. Ontiveros was driving. During a consent search of
the car, officers found a small bag of suspected methamphetamine and a single round
of handgun ammunition. Ontiveros’s female passenger told police that Ontiveros had
a gun in the car. When officers found no firearm, she surmised that Ontiveros had left
the gun at his garage when the two stopped there before the traffic stop. She also
informed police that Ontiveros was selling up to a half ounce of methamphetamine
per day. Despite this information, Ontiveros was not charged with any offense.
In April 2011, the police collected and searched trash left in bins outside the
property where Ontiveros lived. They retrieved what appeared to be a drug note and
ledger, two handgun holsters (while knowing that Ontiveros was a felon), and a
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suspected explosive device. The suspected drug note—which, according to the
affidavit, “appeared to be an ongoing conversation with more than one form of
handwriting”—read:
Did you want like a T-Shirt to work and its only $80.00.
Yes if you could it would help
I fucken love you
Always there
For us
R. vol. 1, at 95. As stated in the affidavit supporting the search warrant, a “T-Shirt” is
slang for a sixteenth ounce of controlled substance—in the affiant’s experience, often
cocaine or methamphetamine—and “$80.00” is a realistic price for that quantity. The
suspected drug ledger read as follows:
GD
120-
50
70+300+150
520 as of 3-2-11
Id. at 96. However, directly after accurately quoting the drug ledger, the affidavit
erroneously stated, “This ledger appeared to be tracking transactions since 03-02-11.”
Id. (emphasis added).
The police called the bomb squad to test and dispose of the suspected
explosive. The device consisted of a red bamboo tube with an inner cardboard body
and a green braided fuse. In disabling it, the bomb squad saw that its contents burned
rapidly. The bomb squad commander determined that the device met the statutory
definition of an explosive or incendiary device.
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Armed with the law enforcement reports dating back to 2009, the fruits of the
trash sweep, and Ontiveros’s known criminal history, the police sought and obtained
from a state magistrate a search warrant for the home and garage. In the garage, in
plain view, they found a sawed-off .410 shotgun with a 12.25 inch barrel and an
overall length of 18.25 inches. They also found various types and multiple rounds of
ammunition for both shotguns and handguns. In addition to the firearm and
ammunition, the search uncovered drug paraphernalia and suspected drug residue.
Ontiveros arrived during the search. After an officer read Ontiveros his
Miranda rights, he admitted he kept the sawed-off shotgun for protection.
Ontiveros, acting through counsel, moved to suppress the evidence obtained
under the search warrant based on what he contended were material omissions in the
supporting affidavit and its failure to provide facts sufficient to establish probable
cause. The district court heard arguments on the motion on January 13, 17, and
February 14, 2012. The court denied Ontiveros’s motion and found a substantial basis
for the state magistrate’s probable-cause determination. Alternatively, the court also
found the good-faith exception would defeat the suppression motion even if the
warrant had failed to establish probable cause.
B. Representation by Counsel and Self-Representation
At Ontiveros’s initial appearance, the federal magistrate assigned him his first
public defender, Matthew Golla. Just two weeks after Golla’s appointment, Ontiveros
filed the first of a myriad of motions without Golla’s signature and against his advice.
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These motions were largely frivolous. For example, Ontiveros moved for an
evidentiary hearing, for an evidentiary “meeting,” and for the court to take judicial
notice of the invalidity of the firearms statute because Congress had supposedly
lacked a quorum when it passed the law. Further, Ontiveros filed a motion to obtain
his grand jury transcripts, even after Golla had explained the legal futility of the
motion. Even though Golla had agreed to request the transcripts, Ontiveros still filed
his own motion.
After only two months of representing Ontiveros, Golla moved to withdraw.
At the hearing on the motion to withdraw, Golla informed the court that Ontiveros
had filed complaints with the Tenth Circuit and the Colorado Bar, accusing him of
ineffective representation. Golla explained the difficulties arising out of Ontiveros’s
insistence that he had a right to a copy of the grand jury transcripts and Ontiveros’s
accusations that Golla was withholding the transcripts. Golla further informed the
court that Ontiveros had refused to speak with Golla’s investigator to provide the
location of potential witnesses to testify at the upcoming suppression hearing. Golla
said he suspected that Ontiveros’s complaints came from poor advice received from
jailhouse lawyers at the correction facility. Having heard the history of the attorney-
client relationship, the court found communications had irreparably broken down,
and it granted Golla’s motion to withdraw.
Two days later, the court appointed Scott Reisch to represent Ontiveros.
Reisch lasted four months before moving to withdraw, explaining that irreconcilable
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differences had developed and that Ontiveros wished to proceed pro se. Ontiveros
filed a similar motion of his own, seeking Reisch’s removal and requesting that he be
allowed to represent himself. Not waiting for the district court to decide the motion,
Ontiveros continued his practice of regularly filing pro se motions, including a
request for bond and for a continuance of his trial.
At the hearing on Reisch’s motion to withdraw, the court thoroughly examined
the underlying reasons for the disagreements between Reisch and Ontiveros and
found no irreconcilable difference between them warranting withdrawal of counsel.
Next, the court thoroughly questioned Ontiveros about his insistence that the court
allow him to represent himself. Ontiveros explained that “this is a motion basically
asking the Court to grant and file -- basically to be pro se and ask for extension of
time for pretrial motions and extension of -- push my trial date all the way down to
April, if possible.” R. vol. 4, at 8. The court cautioned Ontiveros of the pitfalls of
self-representation and encouraged him to keep his appointed attorney:
I mean, I have seen some of your pro se motions and I was
looking at the motions you just recently filed, and it goes back to what
we were talking about the last time which is Mr. Reisch knows the law.
He is a very experienced trial counsel. And I think you understand that.
You may have a disagreement as to certain motions, but you probably
don’t disagree with the fact that Mr. Reisch has a good understanding of
the law. You don’t. So as a result, representing yourself poses lots of
hurdles to you, a tremendous number of hurdles.
So I frankly haven’t heard anything that constitutes any type of
irreconcilable conflict at this time, but you have got a constitutional
right to represent yourself if you really wish to go that route.
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So, you know, I think that the first thing that you probably need
to decide is whether or not you wish to carry on with Mr. Reisch. He
has indicated he is perfectly willing to go to trial in this case and I know
from personal experience he does a very good job. You may have some
disagreements, but that would be I think a distinct advantage to you to
have Mr. Reisch represent you at trial . . . .
So undoubtedly I think you probably have thought about those
things, and if you wish, I can give you a little bit more time to think
those through, but deciding to go to trial on your own as a pro se
litigant, it’s a big, big decision.
Id. at 9–10 (emphasis added). Despite the court’s admonitions, Ontiveros continued
to insist on representing himself.
While emphatically demanding that the court allow him his constitutional right
to self-representation, Ontiveros simultaneously sought to delay his trial until April,
supposedly because his family was attempting to procure an out-of-state lawyer to
represent him. The court doubted whether this would actually happen given
Ontiveros’s earlier failures to retain private counsel. Ontiveros nonetheless insisted
that his family was gathering the funds to retain counsel:
But at the time being, I mean, I would like to go as far as [sic] pro se if
possible, if the Court allows it. And I apologize to my family, actually,
also for putting them in this situation. I mean, like you said and Scott
Reisch, I have a constitutional right to go pro se.
Id. at 12. Once again, the court advised Ontiveros of the dangers of self-
representation, and stated it would “be receptive to having someone come onboard”
to represent Ontiveros. Id. at 12–13. Rejecting the court’s caution, Ontiveros again
demanded to proceed pro se. The court asked: “but that then begs the question of
whether you should be allowed to represent yourself, in which case if I grant that
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request, then Mr. Reisch will not be representing you, obviously. Do you want to do
that?” Id. at 14–15. Ontiveros replied: “Yes, sir.” Id. at 15.
The court proceeded to ask Ontiveros the requisite questions to ascertain
whether he knowingly and voluntarily waived the right to counsel. In response,
Ontiveros assured the court that he wanted to represent himself, that he was familiar
with the charges and potential penalties, that he understood the court could not help
him, that he was responsible for knowing courtroom rules, and that his decision was
voluntary. Finally, after ensuring that Ontiveros fully understood the pitfalls of self-
representation and advising against it, the court acceded to Ontiveros’s exercise of
his constitutional right to self-representation. At the court’s request, however,
Ontiveros accepted Reisch as “advisory counsel.”
During his month of official self-representation before the suppression
hearing, Ontiveros continued to file pro se motions right up to the day of the hearing.
Among these were motions to dismiss, to order the Assistant U.S. Attorney to
respond to his motions and to expedite those responses, to set an evidentiary hearing,
and to fire Reisch from his advisory role.
On January 13, 2012, the court held the first of a three-part hearing on the
suppression motion drafted by Golla. At this hearing, with no indication he might do
so, Ontiveros sought a continuance, claiming to have recently retained private
counsel:
Good morning, Your Honor. Tito Ontiveros, representing myself as pro
se. Possible that family finally got the money to get a defense lawyer. If
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I can get a continuance? He came to see me Tuesday. He is going to
come on board Monday or Tuesday next week; come out and see me.
Id. vol. 1, at 495. Ontiveros assured the court that the attorney had agreed to
represent him and disclosed that “[h]e was actually my Defense Attorney in the state,
through Adams County.” Id. at 496–97. Taking a recess, the court tried to call the
attorney at the number Ontiveros had provided, but the number “just rang busy.” Id.
at 496. Eventually, the court managed to contact this attorney and reported that
Ontiveros’s claim was incorrect. Returning to the courtroom, the court said: “My
judicial assistant just reached [the attorney], and he, in fact, as Mr. Ontiveros said,
has represented Mr. Ontiveros in the past. He indicated that he does not represent Mr.
Ontiveros and will not be representing Mr. Ontiveros. So we will go forward today.”
Id. at 497.
Ontiveros then claimed he was not prepared to proceed because he had
encountered problems accessing the discovery documents supplied by the prosecutor
and because Reisch, now acting as advisory counsel, had not visited him and was not
present at the start of the hearing. The court responded that Ontiveros’s last motion
had been to fire Reisch as advisory counsel and that Ontiveros knew Reisch would
miss the beginning of the hearing. At that point, Ontiveros asked the court to “assign
me an attorney”—evidently seeking a third appointed attorney other than Reisch. Id.
at 498. The court declined to continue the hearing and did not provide a last-minute
appointment of new counsel. The court noted that the prosecution had seven police
officers waiting to testify and that Ontiveros had failed to prepare for the hearing
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despite his ready access to the discovery material. Nowhere did Ontiveros even hint
that he might accept Reisch as appointed counsel. The court proceeded with the
suppression hearing.
At no point during the rest of the hearing did Ontiveros again ask for
appointed counsel or claim to have retained counsel. However, immediately after
losing the suppression motion, and in response to Reisch’s private suggestion,
Ontiveros requested that the court reappoint Reisch to represent him at trial.
Consistent with the court’s earlier advice that Ontiveros have counsel rather than
represent himself, the court promptly agreed.
C. Sentencing
Following a trial, the jury convicted Ontiveros of both counts alleged in the
indictment. Because Ontiveros qualified as an armed career criminal under 18 U.S.C.
§ 924(e), his total offense level was 34 and his criminal-history category was VI,
resulting in an advisory sentencing guideline range of 262 to 327 months. Ontiveros
moved for a downward variance, but the district court denied the motion after
considering several of the applicable 18 U.S.C. § 3553(a) sentencing factors.
Ultimately, the court sentenced Ontiveros to concurrent terms of 262 months in
prison on the first count and 120 on the second count.
Ontiveros now alleges three points of error. First, he argues the district court
violated his rights under the Sixth Amendment by (1) accepting an equivocal waiver
of his right to counsel, and (2) not appointing him counsel a month after the court
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reluctantly had allowed him to proceed pro se. Second, he contends the district court
erred in denying the motion to suppress. Third, he challenges the substantive
reasonableness of his sentence.
II. Discussion
A. Sixth Amendment Right to Counsel
We review de novo whether a waiver of counsel complies with the Sixth
Amendment’s requirements. United States v. Mackovich, 209 F.3d 1227, 1236 (10th
Cir. 2000). In doing so, we review the district court’s findings of fact for clear error.
Id. In evaluating a district court’s denial of a post-waiver request for counsel, we
review for an abuse of discretion. United States v. Merchant, 992 F.2d 1091, 1095
(10th Cir. 1993).
The Sixth Amendment provides in relevant part: “In all criminal prosecutions,
the accused shall enjoy . . . the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. As a corollary to the right to counsel, the Sixth Amendment also protects
a defendant’s right to conduct his own defense. Faretta v. California, 422 U.S. 806,
834 (1975). To exercise the right to self-representation, a defendant must clearly and
unequivocally assert the intention to proceed pro se, the assertion must be timely, and
the assertion must be knowing and intelligent to relinquish the benefits of counsel.
Mackovich, 209 F.3d at 1236. Ontiveros argues that the district court violated his
Sixth Amendment right by accepting his equivocal waiver of the right to counsel.
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Requiring a clear and unequivocal waiver protects a defendant from
unintentionally relinquishing counsel. Id. But an unequivocal waiver “also prevents a
defendant from taking advantage of and manipulating the mutual exclusivity of the
rights to counsel and self-representation.” Id. (internal quotations omitted). The
defendant may not delay the proceedings by placing the judge “in a position where,
in moving along with the business of the court, the judge appears to be arbitrarily
depriving the defendant of counsel.” United States v. Allen, 895 F.2d 1577, 1578
(10th Cir. 1990) (internal quotations omitted).
Ontiveros first contends that the district court violated his Sixth Amendment
right to counsel by accepting an equivocal waiver of that right. He argues that his
request did not amount to an unequivocal waiver of his right to counsel because he
had told the court that he might later retain counsel.1 We reject this argument.
Ontiveros presents no authority that a waiver of counsel is equivocal if the person
waiving suggests that he may later choose to hire counsel. In our view, any such rule
would impinge greatly on the right of self-representation.
1
Ontiveros also claims the trial court de facto committed reversible error by
denying him counsel at a “critical stage” of the criminal proceedings—the
suppression hearing. See Kansas v. Ventris, 556 U.S. 886, 890 (2009) (“We have
held, however, that the [6th Amendment] right extends to having counsel present at
various pretrial critical interactions between the defendant and the State . . . .”
(internal quotations omitted)). But because we hold that Ontiveros validly waived his
right to counsel and that the district court did not abuse its discretion in denying the
post-waiver reappointment, Ontiveros was never denied the right to counsel.
Therefore, this argument also fails.
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Moreover, Ontiveros repeatedly expressed the clear and unequivocal nature of
his waiver at the combined hearing on Reisch’s motion to withdraw and Ontiveros’s
own motion to proceed pro se. The court expressed its willingness to give Ontiveros a
reasonable amount of time to hire a new lawyer to prevent a gap in representation. In
response to the court’s effort to delay his decision to proceed pro se, Ontiveros
replied:
But at the time being, I mean, I would like to go as far as [sic] pro se if
possible, if the Court allows it. And I apologize to my family, actually,
also for putting them in this situation. I mean, like you said and Scott
Reisch, I have a constitutional right to go pro se.
R. vol. 4, at 12 (emphasis added). Thereafter, the district court questioned
Ontiveros’s desire to fire Reisch. Again, Ontiveros repeated his preference to
represent himself.
Rather than simply accepting Ontiveros’s demand that he be allowed to
represent himself, the district court thoroughly conversed with Ontiveros about the
perils of this approach and cautioned him against it. See United States v. Reddeck, 22
F.3d 1504, 1510 (10th Cir. 1994) (“Ideally, the trial judge should conduct a thorough
and comprehensive formal inquiry of the defendant on the record to demonstrate that
the defendant is aware . . . and is fully informed of the risks of proceeding pro se.”
(internal quotations omitted)). In response, Ontiveros expressed a knowing and
voluntary decision to represent himself. Out of an abundance of caution, the district
court concluded by again asking, “Mr. Ontiveros, just to confirm, do you wish to
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proceed to represent yourself in this matter?” R. vol. 3, at 69. Ontiveros responded:
“Yes, I do, Your Honor.” Id.In sum, even though Ontiveros may have intended to try to retain counsel later,
he still clearly and unequivocally waived his right to counsel and invoked his right to
self-representation.2 Despite the district court’s best efforts to persuade Ontiveros to
continue with appointed counsel, Ontiveros insisted on representing himself. His
Sixth Amendment right to do so cannot be voided by a thought that he might later
choose to hire counsel. Ontiveros cites no authority suggesting that a court could
condition self-representation upon a defendant’s foreswearing later hiring counsel.
Next, Ontiveros argues the district court violated his Sixth Amendment right to
counsel by denying his post-waiver request for reappointment of counsel. After
waiving the right to counsel and proceeding pro se, a defendant has no absolute right
to revoke that waiver and demand another round of appointed counsel. Merchant, 992
F.2d at 1095. Even so, an initial decision to proceed pro se does not automatically
bind a defendant to self-representation for the entirety of the remaining proceedings.
See Menefield v. Borg, 881 F.2d 696, 700 (9th Cir. 1989) (“We are certainly
unwilling to deny counsel because of some conception that the defendant’s initial
2
Ontiveros also argues that his subsequent request for reappointed counsel
introduces doubt as to whether the request to represent himself was unequivocal.
Ontiveros’s contention fails because the unequivocal waiver of counsel at an earlier
hearing cannot be made equivocal by subsequent events. Cf. United States v. Willie,
941 F.2d 1384, 1391 (10th Cir. 1991) (“Since [the defendant] has waived his right to
counsel, he cannot now assert that the trial court erred in not replacing the attorney
whose assistance he has waived.”).
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decision to exercise his Faretta right and represent himself at trial is a choice cast in
stone.”). Instead, in evaluating post-waiver requests for reappointment of counsel, we
examine “the degree to which a defendant has shown good cause and the timeliness
of the request.” Merchant, 992 F.2d at 1095.
Before addressing the good cause and timeliness of his request for
reappointment of counsel, Ontiveros argues that the district court committed
reversible error by neglecting to make formal factual findings in support of its denial
of the post-waiver request. Ontiveros cites no Tenth Circuit authority requiring
formulaic fact-finding in this context. Regardless, we believe the district court made
adequate inquiries in this case. See United States v. Leveto, 540 F.3d 200, 208 (3d
Cir. 2008) (“[W]e do not insist upon a formal inquiry or colloquy where the
rationales for the request and decision are clearly apparent on the record.”). Before
denying the request for appointment of a third lawyer, the court called Ontiveros’s
supposedly retained attorney, discussed Ontiveros’s desire to fire Reisch even as
advisory counsel, inquired into the harm that delay would cause the prosecution, and
examined Ontiveros about his failure to prepare for the suppression hearing. In this
case, the district court’s inquiries were more than enough.
If Ontiveros actually argues now that he would have accepted reappointment
of Reisch as counsel, he must admit that he did not ask the district court to reappoint
him. The court would have had no reason to believe Ontiveros desired that. The
district court plainly knew about Ontiveros’s displeasure with Reisch’s
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representation. Just before requesting another round of appointed counsel, Ontiveros
had expressed his desire to fire Reisch. When Ontiveros really did seek Reisch’s
reappointment (after losing the suppression motion), the district court immediately
appointed Reisch again.
Next, Ontiveros contends his post-waiver request for counsel was timely and
supported by good cause. We disagree. As to good cause, the record reflects that
Ontiveros requested new counsel, in part, because he was supposedly unprepared.
The district court had already continued the suppression hearing by nearly three
weeks to ensure that Ontiveros would have sufficient time to prepare. After getting
that continuance, Ontiveros assured the court that he would be ready and prepared for
the hearing. Nonetheless, Ontiveros waited until the start of the suppression hearing
to request a third appointed lawyer. Ontiveros’s lack of preparation does not present a
good cause to grant a post-waiver request for reappoint of counsel.
Additionally, Ontiveros’s request for a third round of appointed counsel was
untimely. For no good reason, Ontiveros waited until the day of the suppression
hearing to tell the court about his supposedly retained counsel and, after that was
proved false, to request yet another court-appointed attorney. Even if we accepted
that “retained counsel” had visited Ontiveros three days before the suppression
hearing and agreed to represent him, Ontiveros still could have advised the court of
this at that time rather than on the morning of the suppression hearing.
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Not only did Ontiveros sit on his request, but granting it would have strained
the court’s schedule and wasted the time of seven law enforcement officers present
and ready to testify.
A criminal defendant has a constitutional right to defend himself; and
with rights come responsibilities. If at the last minute he gets cold feet
and wants a lawyer to defend him he runs the risk that the judge will
hold him to his original decision in order to avoid the disruption of the
court’s schedule that a continuance granted on the very day that trial is
scheduled to begin is bound to cause.
United States v. Solina, 733 F.2d 1208, 1211–12 (7th Cir. 1984). Accordingly, the
court acted within its discretion to deny Ontiveros’s post-waiver motion for another
appointed counsel. See Reddeck, 22 F.3d at 1510 (“We have repeatedly shown
concern with the use of the right to waive counsel as a cat and mouse game with the
courts.” (internal quotations omitted)).
In arguing otherwise, Ontiveros relies heavily upon United States v. Proctor,
166 F.3d 396 (1st Cir. 1999). In Proctor, as here, the district court had denied at a
motions hearing the defendant’s post-waiver request for counsel. Id. at 400. In
denying the post-waiver request, the court stated, “Well, it’s too late for that.” Id. at
400. The defendant represented himself at trial and was found guilty. Id. He
requested and received counsel for sentencing. Id. The First Circuit overturned the
post-waiver denial because the district court had failed to articulate whether its
statement that it was too late for appointment of counsel applied only to the motion
hearing that day or instead to the rest of the criminal proceedings. Id. at 405–06. In
examining the district court’s denial, the First Circuit remarked that if “Proctor only
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sought and was denied counsel for the rest of the day, we would have no difficulty in
rejecting his Sixth Amendment claim.” Id. at 403.
The instant case differs from Proctor because here the district court did not
deny appointed counsel for the rest of the case—only for what was originally set as a
one-day suppression hearing. Nothing suggests that the district court would have
refused to appoint Reisch as counsel at any point in the proceeding. In fact, the
district court tried to persuade Ontiveros to keep Reisch as counsel rather than
represent himself. When Ontiveros asked that the court reappoint Reisch at the end of
the suppression hearing, it immediately did so. Accordingly, unlike the defendant in
Proctor, Ontiveros did not suffer from any ambiguity on the part of the district court,
and he was not denied counsel for the remaining proceedings.3
We note that even if the Sixth Amendment did guarantee Ontiveros a third
appointment of counsel, he still would have no right to appointed counsel of choice.
United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006). We must remember that
the district court found no irreconcilable difference between Reisch and Ontiveros.
“[T]he Supreme Court has stated that those without the means to hire counsel have no
cognizable complaint in the face of adequate court-appointed representation . . . .”
United States v. Flanders, 491 F.3d 1197, 1216 (10th Cir. 2007) (citing Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989)). Thus, Ontiveros
3
Because we find the trial court did not err in denying Ontiveros’s post-waiver
request, we need not reach the harmless error arguments.
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had no right for the court to appoint him a third attorney—Reisch remained a
sufficient court-appointed counsel. In light of the circumstances, we find that the
district court did not abuse its discretion by denying appointed counsel on the
morning of the suppression hearing.
B. Probable Cause for the Warrant
“In reviewing the denial of a motion to suppress, we must view the evidence in
the light most favorable to the government and uphold the district court’s factual
findings unless clearly erroneous.” United States v. Roach, 582 F.3d 1192, 1200
(10th Cir. 2009). We review de novo Fourth Amendment legal determinations—e.g.
probable cause and the good-faith exception. Id. Searches conducted under a warrant
receive greater deference: “[W]e look to ensure that the judge had a substantial basis
for concluding that the affidavit in support of the warrant established probable
cause.” United States v. Burkhart, 602 F.3d 1202, 1205 (10th Cir. 2010) (internal
quotations omitted).
Under the Fourth Amendment, no warrant shall issue “but upon probable
cause.” U.S. Const. amend. IV. “An affidavit establishes probable cause for a search
warrant if the totality of the information it contains establishes the fair probability
that contraband or evidence of a crime will be found in a particular place.” United
States v. Barajas, 710 F.3d 1102, 1108 (10th Cir. 2013) (internal quotations omitted).
The affidavit must create a nexus between the particular place to be searched and the
suspected criminal activity. Id. Ultimately, an affiant must present adequate
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information to the magistrate by which the magistrate can find probable cause. Id.The magistrate must not ratify the bare conclusions of others or reach a decision by
“piling hunch upon hunch.” Roach, 582 F.3d at 1200.
Ontiveros argues that the search warrant lacked a nexus between the garage
and the suspected criminal activity—explosive devices, firearms, and drugs. This
argument fails. First, a trash sweep conducted the same day the search warrant issued
yielded a suspected explosive device, two handgun holsters (Ontiveros was a felon
and prohibited from possessing firearms), and notes about drug sales. Although not
definitive evidence of gun possession, the presence of holsters made it more likely
that firearms might be in the garage. Further, the presence of a note and ledger likely
pertaining to drug sales made it more likely that Ontiveros was indeed possessing and
selling controlled substances from his garage. Finally, the condition and testing of the
suspected explosive device made it more likely that Ontiveros was possessing or
manufacturing these devices somewhere on the property covered by the search
warrant.
Next, Ontiveros argues that the suspected explosive device cannot establish
probable cause because the affidavit presents a materially misleading description and
relies on the bomb squad commander’s conclusory statements. Both contentions fail.
The affidavit stated that “the device had a bamboo body with an inner cardboard
body” and “a green fuse and the contents inside burned rapidly during a burn test.” R.
vol. 1, at 96. Based upon these facts, the commander of the bomb squad said the
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device met the statutory definition of an explosive device. Nothing in this description
suggests a materially misleading characterization. The bomb squad commander based
his conclusion on a straight-forward factual description of the suspected device. Cf.
Ornelas v. United States, 517 U.S. 690, 700 (1996) (“[A] police officer may draw
inferences based on his own experience in deciding whether probable cause exists.”).
When we combine the items recovered in the trash sweep with the other
investigative information contained in the affidavit, we see a nexus between
Ontiveros, his garage, and the suspected criminal activity. We believe that the state
magistrate had a substantial basis to find that the affidavit supplied probable cause of
each of the identified suspected crimes.
Ontiveros argues that the information provided by unnamed persons cannot be
considered at all because the individuals lack credibility.
When judging information provided by an informant as the foundation
supporting probable cause for a search warrant, we consider the
informant’s veracity, reliability, and the basis of knowledge as relevant
factors to evaluate in assessing whether given all the circumstances set
forth in the affidavit there is a fair probability that contraband or
evidence of a crime will be found in a particular place.
United States v. Mathis, 357 F.3d 1200, 1205 (10th Cir. 2004) (internal quotations
and alterations omitted). Nothing in the record, aside from Ontiveros’s allegations,
suggests that the individuals lacked veracity, reliability, or a basis of knowledge.
Although some of the persons were unnamed in the affidavit, their identities were
known to the police but omitted because they feared retaliation from Ontiveros. The
affiant also took independent action to verify and corroborate the individuals’
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statements. See United States v. Jenkins, 313 F.3d 549, 556 (10th 2002) (upholding
probable cause based upon an affidavit containing anonymous tips based, in part,
upon the police independently corroborating the informant’s allegations). When we
consider the information provided by the individuals along with the fruits of the trash
sweep, the allegations bear sufficient reliability to support probable cause. See id. at
554 (“[T]he informant’s allegations . . . bore sufficient indicia of reliability such that,
when considered with the other information supplied by the officer, the affidavit was
sufficient to permit a finding of probable cause.”).
Further, the affidavit identifies Ontiveros’s past convictions and arrests for
crimes such as “Possession of Weapons by Previous Offenders” and “Possession of
Dangerous Drugs” among others.4 R. vol. 1, at 95. “[C]riminal history, combined
with other factors, can support a finding of reasonable suspicion or probable cause.”
United States v. Artez, 389 F.3d 1106, 1114 (10th Cir. 2004). When the previous
felony convictions and drug-related criminal history are considered in light of the
potential evidence concerning firearm possession and the drug sales, it becomes more
probable that Ontiveros was engaged in criminal activity. See Artez, 389 F.3d at 1115
4
Ontiveros contends that many of these incidents fail to support probable cause
because they deal with undated arrests and irrelevant convictions. We review
probable cause under the totality of the circumstances. The circumstances here
suggest Ontiveros’s ongoing criminal activity with guns and drugs, corroborated by
the trash sweep and information provided by witnesses and individuals, made the
suspected criminal activities more likely.
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(finding a substantial basis for probable cause in an affidavit based, in part, upon the
defendant’s and his accomplices’ drug related criminal histories).
Even so, Ontiveros argues that both his criminal history and the information
provided by the individuals were stale. We cannot uphold probable cause based upon
stale information. Roach, 582 F.3d at 1201. In determining the staleness of
information, we consider “the nature of the criminal activity, the length of the
activity, and the nature of the property to be seized.” Id. (internal quotations
omitted). When the evidence suggests “a longstanding pattern of repeated activity,”
staleness becomes less important because “it [is] less likely that the activity has
ceased within a short time frame.” Id. With ongoing and continuous criminal activity,
recent information may revive and refresh stale information. United States v. Cantu,
405 F.3d 1173, 1177–78 (10th Cir. 2005).
Although not raised by the government on appeal, we believe that Ontiveros
waived any challenge to the staleness of the affidavit’s information since he neither
raised the argument below nor showed good cause for his failure to do so. United
States v. Burke, 633 F.3d 984, 991 (10th Cir. 2011) (“[W]e hold [Fed. R. Crim. P.]
12’s waiver provision . . . governs motions to suppress evidence, including specific
arguments to suppress evidence, raised for the first time on appeal. Such motions and
arguments are waived absent a showing of good cause for why they were not raised
below.”). Therefore, we need not reach the staleness challenges.
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Regardless, even if we entertained the argument, the court properly considered
both the investigative information and the criminal history because they
demonstrated a pattern of ongoing criminal activity. The affidavit tracks Ontiveros’s
alleged activity: first, in 2009, claims that Ontiveros had sold stolen property from
his garage; second, in 2010, a witness linked Ontiveros to recovering stolen property
at gun point while using methamphetamine; third, in late 2010, allegations of
methamphetamine sales and firearm possession; fourth, in early 2011, a traffic stop
which revealed suspected methamphetamine and ammunition; and fifth, immediately
before the instant search, a trash sweep with evidence supporting the earlier accounts
of firearms and drugs at Ontiveros’s garage. Accordingly, even if some of the
information was dated, the clear pattern of ongoing and continuous criminal activity
allowed the state magistrate to consider the investigative information and Ontiveros’s
criminal history. Cantu, 405 F.3d at 1177–78.
Ultimately, we determine probable cause by a totality of the circumstances.
Barajas, 710 F.3d at 1108. We are not free to “divide-and-conquer” individual facts
within the affidavit that alone may not support probable cause. United States v.
Valenzuela, 365 F.3d 892, 897 (10th Cir. 2004). Nothing Ontiveros presents shakes
our confidence that the totality of the circumstances reveals a fair probability that
Ontiveros was committing the alleged criminal activity at his garage. Therefore, the
district court did not err in finding that the state magistrate had a substantial basis to
find probable cause supporting the search warrant.
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Because we uphold the probable cause determination, we need not reach the
district court’s good-faith exception analysis. Mathis, 357 F.3d at 1207. But even if
we believed that the search warrant was not based on probable cause, we still would
sustain the search warrant on grounds of the good-faith exception. Evidence obtained
under a search warrant later found to be unsupported by probable cause “need not be
suppressed if the executing officer acted with an objective good-faith belief that the
warrant was properly issued by a neutral magistrate.” United States v. Danhauer, 229
F.3d 1002, 1006 (10th Cir. 2000). The good-faith exception does not apply in four
situations:
First, evidence should be suppressed if the issuing magistrate was
misled by an affidavit containing false information or information that
the affiant would have known was false if not for his reckless disregard
of the truth. Second, the exception does not apply when the issuing
magistrate wholly abandons her judicial role. Third, the good-faith
exception does not apply when the affidavit in support of the warrant is
so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable. Fourth, the exception does not apply
when a warrant is so facially deficient that the executing officer could
not reasonably believe it was valid.
Id. at 1007 (internal citations, quotations, and alterations omitted).
Ontiveros claims that the warrant in this case falls under the first and third
situations, but we disagree. Even though the affidavit incorrectly claimed the drug
ledger tracked sales since March 2011, rather than as of March 2011, the affidavit
quoted the full ledger accurately right above the mistake. Accordingly, the mistake
obviously was inadvertent and the state magistrate would not have been misled.
Additionally, our earlier finding that probable cause supported the warrant defeats
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any suggestion that it so lacked probable cause that the state magistrate’s reliance
upon it was unreasonable.
Accordingly, even if there had not been a substantial basis for probable cause,
which we find there was, the Leon good-faith exception would have defeated the
suppression motion.
C. Substantive Reasonableness of Ontiveros’s Sentence
We review sentencing decisions for substantive reasonableness under the
abuse of discretion standard. United States v. Martinez, 610 F.3d 1216, 1227 (10th
Cir. 2010). We afford the district court substantial deference in determining the
reasonableness of the sentence considering the requisite 18 U.S.C. § 3553(a) factors.
Id. Ultimately, we only reverse a sentence if the district court “renders a judgment
that is arbitrary, capricious, whimsical or manifestly unreasonable.” Id. (internal
quotations omitted).
Ontiveros challenges the substantive reasonableness of his sentence. See
Martinez, 610 F.3d at 1223 (“Reasonableness review has a procedural and
substantive component.”). He argues the district court unreasonably relied upon his
past criminal history, neglecting the other 18 U.S.C. § 3553(a) factors, in sentencing
him to the minimum of his advisory guideline range and denying a downward
variance. Ontiveros’s argument fails for two reasons.
First, on appeal, we presume the reasonableness of a sentence within the
advisory guideline range. United States v. Alvarez-Bernabe, 626 F.3d 1161, 1167
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(10th Cir. 2010). Ontiveros was sentenced to imprisonment for 262 months, the low
end of his advisory guideline. He has failed to raise any argument effectively
undermining the presumed reasonableness of this within-guidelines sentence.
Second, the district court considered the relevant factors and did not place
undue weight on Ontiveros’s criminal history. The court certainly considered “the
nature and circumstances of the offense.” § 3553(a)(1). The court addressed the need
for Ontiveros’s sentence “to reflect [the] seriousness of the offense.” §
3553(a)(2)(A). The court then addressed how the sentence would “protect the public
from further crimes.” § 3553(a)(2)(C). Finally, the court addressed the “kinds of
sentence and the sentencing range” applicable under § 3553(a)(4). The court’s
thorough and balanced consideration of the relevant § 3553(a) factors satisfies us of
the substantive reasonableness of the sentence. See United States v. Cordova, 461
F.3d 1184, 1189 (2006) (“The sentencing court . . . is not required to consider
individually each factor listed in § 3553(a) . . . .” (internal quotations omitted)).
Thus, the district court did not abuse its discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s decision to allow
Ontiveros to proceed pro se and to deny his post-waiver reappointment of counsel.
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We AFFIRM the court’s denial of the motion to suppress. Finally, we AFFIRM the
reasonableness of Ontiveros’s sentence.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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