United States v. Jesus Rodriguez , 198 F. App'x 842 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15824 SEPTEMBER 6, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 05-20162-CR-UUB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS ALBERTO RODRIGUEZ,
a.k.a Jesus A. Rodriguez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 6, 2006)
Before ANDERSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Jesus Alberto Rodriguez, Jr. pled guilty to conspiracy to possess with intent
to distribute more than 500 grams of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), and 846, and was sentenced to 46 months’ imprisonment.
On appeal, he argues the district court erred in: (1) denying his motion to suppress
evidence seized during his arrest; and (2) imposing a two-point sentencing
enhancement for his co-conspirator’s possession of a dangerous weapon pursuant
to U.S.S.G. § 2D1.1(b)(1). The district court did not err, and we affirm.
Rodriguez first argues the district court erred in denying his motion to
suppress because the officers did not have probable cause to arrest him and,
therefore, the subsequent searches of him and his vehicle were unlawful. “A
district court’s ruling on a motion to suppress presents a mixed question of law and
fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We review
the district court’s factual findings for clear error and its application of the law to
those facts de novo. Id. “[A]ll facts are construed in the light most favorable to
the prevailing party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th
Cir. 2000). “The individual challenging the search bears the burdens of proof and
persuasion.” United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).
The constitutional validity of a warrantless arrest depends upon whether, at
the time of the arrest, the officer had probable cause to make the arrest. Beck v.
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Ohio, 85 S. Ct. 223, 225 (1964). “[P]robable cause . . . is a doctrine of reasonable
probability and not certainty.” United States v. Magluta, 44 F.3d 1530, 1535 (11th
Cir. 1995). Probable cause exists when “the facts and circumstances within the
officer’s knowledge, of which he or she has reasonably trustworthy information,
would cause a prudent person to believe, under the circumstances shown, that the
suspect has committed, is committing, or is about to commit and offense.” United
States v. Lyons, 403 F.3d 1248, 1253 (11th Cir. 2005) (quotation omitted).
“Moreover, when a group of officers is conducting an operation and there exists at
least minimal communication between them, their collective knowledge is
determinative of probable cause.” United States v. Wilson, 894 F.2d 1245, 1254
(11th Cir. 1990).
The district court did not err in determining the police had probable cause to
arrest Rodriguez. At the time of Rodriguez’s arrest, officers were aware that
Mariano Cardoso, whom they arrested earlier that day, was involved in the
distribution of cocaine. Officers had previously seen Rodriguez’s red Tahoe
parked at Cardoso’s home around the same time that Cardoso had told an
undercover agent that he had met with his supplier near his home. Further,
Rodriguez arrived at Cardoso’s home fifteen minutes after Jesus Rodriguez, Sr.’s
(“Padrino’s”) conversation with Miami Police Officer Soler, who, after pretending
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to be Cardoso, persuaded Padrino to come to Cardoso’s home to exchange the
cocaine. When Officer Soler emerged from the house, he observed Rodriguez
change directions and walk away from the house. He also heard another officer
yell that an occupant of the Tahoe had a gun. Based on the totality of the
circumstances, the officers possessed sufficient information to conclude that
Rodriguez was probably transporting cocaine to Cardoso’s home. Therefore, the
district court did not err in denying Rodriguez’s motion to suppress the evidence
obtained as a result of his arrest and search.
Rodriguez next argues the district court erred in enhancing his sentence
based on Padrino’s possession of a firearm. The government responds Rodriguez
waived his right to appeal the sentencing enhancement in his plea agreement.
Whether a defendant knowingly and voluntarily waives his right to appeal his
sentence is a question of law subject to de novo review. United States v. Benitez-
Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).
The right to appeal a sentence is a statutory right that can be waived if done
so knowingly and voluntarily. See United States v. Bushert, 997 F.2d 1343, 1350
(11th Cir. 1993). We will enforce a sentence appeal waiver if the Government
demonstrates either “(1) the district court specifically questioned the defendant
concerning the sentence appeal waiver during the Rule 11 colloquy, or (2) it is
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manifestly clear from the record that the defendant otherwise understood the full
significance of the waiver.” Id. at 1351. During the plea colloquy, it is insufficient
for the district court merely to inform the defendant that he may appeal “under
some circumstances.” See id. at 1352-53. Rather, the court must specifically
explain to the defendant the nature and extent of the appeal waiver. See United
States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997).
The record supports the conclusion that Rodriguez knowingly and
voluntarily waived his right to appeal his sentence. The district court reviewed the
specific terms of the waiver with Rodriguez at the Rule 11 hearing, and Rodriguez
repeatedly indicated his understanding of the scope and consequences of his
waiver. Rodriguez’s claim is covered by the appeal waiver, and none of the
exceptions to it apply. Accordingly, as Rodriguez’s appeal waiver precludes
review of his sentencing enhancement, we affirm.
AFFIRMED.
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