United States v. Cesar Gonzalez , 781 F.3d 422 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1422
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Cesar Alexis Gonzalez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: November 12, 2014
Filed: March 23, 2015
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Before RILEY, Chief Judge, BEAM and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Cesar Alexis Gonzalez entered a conditional guilty plea to conspiracy to
distribute methamphetamine. The district court1 sentenced him to 168 months’
1
The Honorable John A. Jarvey, now Chief Judge, United States District Court
for the Southern District of Iowa.
imprisonment. Gonzalez appeals both the denial of his motion to suppress and his
sentence. We affirm.
I.
On March 19, 2012, Tony Young approached a United Parcel Service (“UPS”)
truck in Wellman, Iowa and attempted to give the driver a package. When the driver
said he could not take the package because it lacked a proper label, Young anxiously
offered to pay the driver with cash. The driver directed Young to a nearby UPS drop-
off location. When the driver later arrived at that drop-off location, he saw a package
from Young’s address. Because of Young’s earlier behavior and the package’s bulky
shape and because the package’s expedited delivery schedule required it to be
transported by plane, the driver contacted a supervisor at the Coralville, Iowa UPS
facility. After discussing the driver’s concern, the supervisor opened the package.
Inside, she found a large stack of cash wrapped in foil, which she brought to the
attention of another supervisor, Shawn Reinhart.
Reinhart and UPS security consulted local police officer Eric Weber, and UPS
decided to send the package to its intended recipient, Cesar Gonzalez, in Yuma,
Arizona. Officer Weber then contacted Yuma police, who photographed the package
when it arrived in Arizona. Citing concern for employee safety, UPS declined the
police request to deliver the package normally. Instead, UPS allowed police to leave
a note at Gonzalez’s residence stating that the package was available for pick up at
a local store. Police observed Gonzalez retrieve the package and return home.
On March 22, at the Coralville UPS facility, Reinhart noticed a new package
from Gonzalez addressed to Young. Reinhart retrieved this package around 7:00 a.m.
and called Officer Weber at about 8:15 a.m. Officer Weber told Reinhart to hold the
package, and he arranged for a drug-detection dog unit to conduct a sniff. The dog
unit met Officer Weber at the Coralville facility at approximately 9:30 a.m.
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The dog handler told Reinhart to place Gonzalez’s package in a line with three
similar packages without telling him or Officer Weber which one came from
Gonzalez. The handler then commanded the dog to find drugs. The dog walked by
the first two packages without showing any interest, but he nudged and played with
the third package and scratched at the fourth. After a short time, the handler took the
dog back to the third and fourth packages. On the second pass, the dog showed no
interest in the third package but again scratched at the fourth, this time also biting it.
The handler did a third pass to confirm, and the dog once again scratched at only the
fourth package. By 10:30 a.m., the dog sniff concluded, and the handler informed
Officer Weber that the dog had signaled an alert to the fourth package. When Officer
Weber learned that this package came from Gonzalez, he took possession of it and
obtained a search warrant later the same day. Upon opening the package, Officer
Weber discovered 7.2 ounces of methamphetamine. Officer Weber informed Yuma
police about the drugs, and they obtained warrants to arrest Gonzalez and to search
his home and vehicle. The search revealed marijuana, a scale, a rifle, and
ammunition. After his arrest, Gonzalez admitted to police that Young was his uncle
and that he had mailed Young packages in the past.
After being indicted for conspiracy to distribute methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846, Gonzalez filed a motion to suppress, raising
several Fourth Amendment challenges. The district court denied the motion.
Gonzalez subsequently pleaded guilty, reserving his right to withdraw his plea if he
were to prevail on appeal from the order denying his motion to suppress. He later
filed a motion to withdraw his guilty plea, which the district court denied. After
denying Gonzalez’s requests for a downward variance and a two-level sentence
reduction for acceptance of responsibility, the court sentenced Gonzalez to 168
months’ imprisonment, a sentence at the bottom of his advisory guidelines range of
168 to 210 months. He now appeals.
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II.
Gonzalez argues that the district court erred in denying his motion to suppress
on several grounds. He contends that the March 19 package search and the March 22
package seizure violated his Fourth Amendment rights, that the dog sniff did not
establish probable cause for a warrant to search the second package, and that evidence
obtained as a result of each warrant issued in reliance on these actions was tainted.
In addition, Gonzalez argues that the court erred in imposing his 168-month sentence.
A.
We begin with the district court’s denial of the motion to suppress the evidence
gathered from the first package search on March 19. “When reviewing a district
court’s decision to deny a motion to suppress, we review factual findings for clear
error and conclusions of law de novo.” United States v. Jimenez, 478 F.3d 929, 931
(8th Cir. 2007). The district court held, and we agree, that this search did not
implicate the Fourth Amendment. The Fourth Amendment protects only against
government action. United States v. Jacobsen, 466 U.S. 109, 113 (1984). “[A]
search by a private party with no government knowledge or participation” does not
implicate this constitutional right to be free from unreasonable search and seizure.
United States v. Livesay, 983 F.2d 135, 136 (8th Cir. 1993). Although Gonzalez
acknowledges that UPS employees, rather than government officials, conducted the
search that revealed the cash on March 19, he argues that UPS employees were not
private actors. Instead, he alleges that they operated as “de facto” government agents
because UPS had a close and ongoing relationship with law enforcement and because
the employees opened the package not based on UPS policy but based on a desire to
aid police in uncovering illegal activity. See United States v. Smith, 383 F.3d 700,
705 (8th Cir. 2004) (discussing the factors a court must address when determining
whether a private citizen was acting as an agent of the government). We are not
persuaded.
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Gonzalez points to no evidence of a close and ongoing relationship between
UPS and law enforcement leading up to March 19. The evidence in the record shows
that police did not direct UPS to open Young’s package and inspect its contents. UPS
employees contacted police only after they made the independent decision to search.
See United States v. Malbrough, 922 F.2d 458, 461-62 (8th Cir. 1990) (finding Fourth
Amendment rights were not implicated when police did not know of or acquiesce in
a search). Further, the UPS driver testified that he alerted his supervisor to the
package based on safety concerns. Cf. Smith, 383 F.3d at 705 (finding a search
conducted by a FedEx employee was private even though police knew of and
acquiesced in the search because the employee was motivated in part by her
obligation to ensure that her employer was not being used as a means of carrying
contraband). The district court thus properly found that the search was private and
did not implicate Gonzalez’s Fourth Amendment rights. Id. at 705.
Gonzalez next argues that the district court erred in finding no Fourth
Amendment violation in the seizure of the second package. As an initial matter, we
find no support for Gonzalez’s contention that the government seizure began when
he gave the package to UPS in Yuma on March 21. A Fourth Amendment seizure
requires meaningful interference with an individual’s possessory interest. Jacobsen,
466 U.S. at 113. Because UPS forwarded Gonzalez’s package to Iowa in the normal
course of delivery on March 21, no meaningful interference by a government agent
occurred. UPS’s conduct on March 21 thus did not implicate Gonzalez’s Fourth
Amendment rights. See Smith, 383 F.3d at 704.
A government seizure of the second package did occur, however, on March 22
when Reinhart removed the package “from its ordinary progress in the mail and . . .
diverted [it] for further investigation” pursuant to Officer Weber’s request. See id.This temporary seizure required reasonable suspicion of criminal activity. Id.-5-
Gonzalez contends that no reasonable suspicion justified detention of the
second package. When determining whether valid grounds for reasonable suspicion
exists, our de novo review requires us to “examine the totality of the circumstances
. . . evaluating those circumstances as they would be understood by those versed in
the field of law enforcement.” United States v. Morones, 355 F.3d 1108, 1112 (8th
Cir. 2004) (quoting United States v. Demoss, 279 F.3d 632, 636 (8th Cir. 2002)).
Gonzalez argues that reasonable suspicion did not exist because each of the events
leading up to the package’s temporary detention—that is, his flagging down a driver
and sending cash via UPS—were innocent. However, even “a series of acts that
appear innocent, when viewed separately, may warrant further investigation when
viewed together.” United States v. Weaver, 966 F.2d 391, 394 (8th Cir. 1992).
Officer Weber asked Reinhart to hold the second package because it came from
Arizona and was addressed to the same person who anxiously attempted to pay a UPS
employee with cash to take a package containing a large stack of money just days
before. We agree with the district court’s conclusion that these facts, when viewed
in the aggregate by a trained law-enforcement officer, gave rise to an objectively
reasonable suspicion of criminal activity. Cf. United States v. Lakoskey, 462 F.3d
965, 976 (8th Cir.), as amended on reh’g (Oct. 31, 2006) (listing factors creating
reasonable suspicion that a package contained narcotics).
Gonzalez also contends that the seizure of the second package was unlawful
because its duration was unreasonable. Gonzalez relies on the Supreme Court’s
decision in United States v. Place, 462 U.S. 696 (1983). Though Place explained that
“the brevity of the invasion of the individual’s Fourth Amendment interests is an
important factor in determining whether the seizure is so minimally intrusive as to be
justifiable on reasonable suspicion,” the Court in Place declined to adopt any bright-
line time limitation. Id. at 709. Instead, the Court explained that factors such as
police diligence and the degree of intrusion on the suspect’s liberty must be
considered when examining whether a detention violated the Fourth Amendment. Id.
at 709-10. “Where investigators have acted with reasonable diligence, courts have
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found acceptable the detention of mail for anywhere from twenty-nine hours to five
days.” Lakoskey, 462 F.3d at 977 (quoting United States v. Ramirez, 342 F.3d 1210,
1212 (10th Cir. 2003) (collecting cases)).
We agree with the district court’s conclusion that the seizure’s duration was
reasonable. Reinhart removed the package from the ordinary delivery stream at about
7:00 a.m. Around 8:15 a.m., Officer Weber told him to hold the package for further
investigation. A drug-detection dog unit arrived around 9:30 a.m. By 10:30 a.m., the
dog sniff was complete, and Officer Weber secured the package pending receipt of
a search warrant that was issued later the same day. Even if the seizure began at the
earliest point at which the package was diverted, 7:00 a.m., the detention’s duration
of three and a half hours did not violate Gonzalez’s Fourth Amendment rights. See
United States v. Gomez, 312 F.3d 920, 925 (8th Cir. 2002) (finding detention of
package reasonable even though twelve to fourteen hours passed between the time
reasonable suspicion was established and probable cause was clearly demonstrated).
Nothing in the record suggests police exercised suboptimal diligence. See United
States v. Donnelly, 475 F.3d 946, 953-54 (8th Cir. 2007). Gonzalez has “not
suggested that a similarly trained canine unit could have reached the scene sooner.”
Id. at 954. Finally, Gonzalez did not experience any limitation on his freedom of
movement comparable to that suffered by the defendant in Place, in which the
Supreme Court emphasized that “seizure of personal luggage from the immediate
possession of the suspect . . . intrude[d] on both the suspect’s possessory interest in
his luggage as well as his liberty interest in proceeding with his itinerary.” 462 U.S.
at 708. We thus affirm the district court’s denial of the motion to suppress based on
this seizure.
In addition to challenging the March 19 search and the March 22 seizure,
Gonzalez contends that the search of the second package was unlawful because the
dog sniff did not establish probable cause for a search warrant. We review de novo
the district court’s legal determination of probable cause. United States v. Solomon,
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432 F.3d 824, 827 (8th Cir. 2005). “A police officer has probable cause to conduct
a search when ‘the facts available to him would warrant a person of reasonable
caution in the belief’ that contraband or evidence of a crime is present.” Florida v.
Harris, 568 U.S. ---, 133 S. Ct. 1050, 1055 (2013) (quoting Texas v. Brown, 460 U.S.
730, 742 (1983) (plurality opinion)). “In evaluating whether the [Government] has
met this practical and common-sensical standard, we have consistently looked to the
totality of the circumstances.” Id.The Supreme Court recently provided guidance on probable cause based on
drug-detecting dog alerts, stating that “a court can presume (subject to any conflicting
evidence offered) that [a] dog’s alert provides probable cause to search” if “a bona
fide organization has certified a dog after testing his reliability in a controlled setting
. . . [or] if the dog has recently and successfully completed a training program that
evaluated his proficiency in locating drugs.” Id. at 1057. This presumption may be
overcome if a defendant can show, either through cross-examination or introducing
his own fact or expert witness, the inadequacy of a certification or training program
or that the circumstances surrounding a canine alert undermined the case for probable
cause. Id. at 1057-58.
At Gonzalez’s suppression hearing, the Government presented a
comprehensive list of the drug dog’s qualifications. The court received copies of the
dog’s Midwest Canine Certification and a recertification from the United States
Police Canine Association and heard extensive testimony regarding the in-service
training completed by the dog and his handler leading up to the sniff on March 22.
This testimony led the district court to conclude that the dog’s “training, experience,
and certification are such that his positive alert [to the fourth package] on March 22,
2012 was an exceedingly reliable indication that controlled substances would be
found inside the package.”
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We agree with the district court’s conclusion that Gonzalez did not overcome
the presumption of probable cause that attaches when a well-trained dog gives an
alert. See Harris, 133 S. Ct. at 1058. Although Gonzalez’s expert testified that he
was unsatisfied with some of the dog’s qualifications, “all the facts surrounding [the]
dog’s alert, viewed through the lens of common sense, would make a reasonably
prudent person think that a search would reveal contraband or evidence of a crime.”
Id. The dog’s résumé included multiple certification and training programs, and, as
the Supreme Court observed in Harris, “law enforcement units have . . . [a] strong
incentive to use effective training and certification programs, because only accurate
drug-detection dogs enable officers to locate contraband without incurring
unnecessary risks or wasting limited time and resources.” Id. at 1057. Similarly, the
circumstances of the alert, including the dog’s initial interest in another package, do
not give us cause to doubt the dog sniff’s trustworthiness. The evidence shows that
UPS employees created the package line up outside the presence of the dog and his
handler. During the sniff, the dog alerted by scratching and biting at only one
package, and he did so consistently. The handler testified that this dog’s alert signal
is scratching and biting at the object containing narcotics and that the dog’s act of
initially nudging package three was not an alert. Accordingly, we affirm the district
court’s determination that the court had probable cause to issue a warrant based on
the dog sniff.
Because Officer Weber omitted from the search warrant application that the
drug dog initially nudged the third package, Gonzalez argues that the court erred in
denying his motion for a hearing under Franks v. Delaware, 438 U.S. 154 (1978).
To receive a Franks hearing, a defendant must make “a substantial preliminary
showing that a false statement knowingly and intentionally, or with reckless disregard
for the truth, was included by the affiant in the warrant affidavit.” United States v.
Jacobs, 986 F.2d 1231, 1233-34 (8th Cir. 1993) (quoting Franks, 438 U.S. at 155-
56). “[I]f the allegedly false statement is necessary to the finding of probable cause,
the Fourth Amendment requires that a hearing be held at the defendant’s request.”
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Id. (quoting Franks, 438 U.S. at 156). This substantiality requirement is not met
lightly and requires a defendant to offer specific allegations along with supporting
affidavits or similarly reliable statements. See United States v. Williams, 477 F.3d
554, 558 (8th Cir. 2007). We review denial of a Franks hearing for abuse of
discretion. United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013).
The district court denied Gonzalez’s request for a Franks hearing because
Gonzalez had not shown that Officer Weber lied or acted with reckless disregard for
the truth when he omitted from the search warrant application that the dog initially
showed interest in package three. We agree. Though our precedent states that the
reckless disregard for the truth “may be inferred from the fact that . . . information
was omitted,” Jacobs, 986 F.2d at 1235, this inference is valid only when the
defendant shows that the “omitted material would be ‘clearly critical to the finding
of probable cause.’” Id. (quoting United States v. Reivich, 793 F.2d 957, 961 (8th
Cir. 1986)). Gonzalez has failed to establish that the omitted information was critical;
that is, he failed to show that “the affidavit, if supplemented by the omitted
information would not have been sufficient to support a finding of probable cause.”
See Williams, 477 F.3d at 557 (quoting Reivich, 793 F.2d at 961). As discussed
above, an affidavit supplemented with information about the dog’s initial reaction to
package three, which did not constitute an alert for this dog, still would have provided
probable cause to support issuance of a warrant to search package four, to which the
dog gave the appropriate alert signal. Accordingly, we find that Gonzalez did not
make a substantial preliminary showing that Officer Weber acted with reckless
disregard for the truth. We therefore find no abuse of discretion in the district court’s
decision to deny Gonzalez’s request for a Franks hearing.
Because we find no Fourth Amendment violation, we reject Gonzalez’s
contention that other evidence obtained by police, including Gonzalez’s statements
and evidence taken from the search of his home, constituted fruit of the poisonous
tree. See United States v. Crisolis-Gonzalez, 742 F.3d 830, 838 (8th Cir. 2014). We
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similarly reject his contention that subsequent warrants issued based on information
obtained from the package searches were tainted.
B.
In addition to his Fourth Amendment arguments, Gonzalez contends that the
district court erred by imposing a 168-month sentence. In reviewing Gonzalez’s
sentence, we “first ensure that the district court committed no significant procedural
error.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). We “then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id. (quoting Gall, 552 U.S. at 51).
Gonzalez argues that the court erred when it refused to give him a two-level
sentence reduction for acceptance of responsibility under USSG § 3E1.1(a). We note
that a “district court is in a unique position to evaluate acceptance of responsibility,
[and] we will not disturb a district court’s decision to deny or grant the reduction
unless that decision is clearly erroneous.” United States v. Walter, 62 F.3d 1082,
1083 (8th Cir. 1995) (per curiam). We reverse only if the court’s denial “is so clearly
erroneous as to be without foundation.” United States v. Adejumo, 772 F.3d 513, 536
(8th Cir. 2014) (quoting United States v. William, 681 F.3d 936, 938 (8th Cir. 2012)).
Here, the district court determined that Gonzalez should not receive the
two-level reduction. We discern no clear error in this determination. “The guilty plea
itself did not entitle [Gonzalez] to a reduction in sentence ‘as a matter of right.’”
United States v. Passmore, 984 F.2d 933, 938 (8th Cir. 1993) (quoting USSG § 3E1.1
cmt. 3). Rather, Gonzalez held the burden of establishing acceptance of
responsibility. See United States v. Morales, 923 F.2d 621, 628 (8th Cir. 1991). The
district court did not clearly err in finding that Gonzalez had not met his burden
because his attempt to withdraw the plea “was inconsistent with the Guidelines’
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requirement that the defendant clearly demonstrate[] a recognition and affirmative
acceptance of personal responsibility for his criminal conduct.” Passmore, 984 F.2d
at 938-39 (finding no abuse of discretion in denial of two-level reduction for
acceptance of responsibility where defendant attempted to withdraw his guilty plea).
Because we cannot say that the district court’s decision was “without foundation,” we
affirm the denial of this reduction. See United States v. Duke, 935 F.2d 161, 162 (8th
Cir. 1991).2
Gonzalez also contends that the court abused its discretion by refusing to vary
downward and by failing to consider properly the disparity between his 168-month
sentence and the 135-month sentence imposed on his co-conspirator, Tony Young.
“A district court abuses its discretion when it (1) fails to consider a relevant factor
that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” United States v.
Borromeo, 657 F.3d 754, 756 (8th Cir. 2011) (quoting Feemster, 572 F.3d at 461).
A sentence within the Guidelines range, such as the one imposed on Gonzalez, “is
accorded a presumption of substantive reasonableness on appeal.” United States v.
Toothman, 543 F.3d 967, 970 (8th Cir. 2008).
We find no abuse of discretion. Regarding the refusal to vary downward, we
note that the district court heard Gonzalez’s arguments for a downward variance and
stated that it had received Gonzalez’s memorandum listing all the reasons for
variance he now raises on appeal. These facts, combined with the court’s recitation
of several 18 U.S.C. § 3553 factors justifying the 168-month sentence, show that the
2
Moreover, we note that the district court stated it would impose the same
sentence even if the two-level reduction were granted. See United States v. Straw,
616 F.3d 737, 742 (8th Cir. 2010) (“Incorrect application of the Guidelines is
harmless error where the district court specifies the resolution of a particular issue did
not affect the ultimate determination of a sentence.”).
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court was fully aware of its ability to grant a downward variance but declined to do
so. See United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008) (stating that
specific findings on all § 3553(a) factors are not needed; evidence that district court
was aware of relevant factors is sufficient). Moreover, when imposing Gonzalez’s
sentence, the court stated that “the Guideline sentencing system adequately
addresse[d] the circumstances of this defendant and that the sentencing range [was]
reasonable.”
Likewise, we are not persuaded that the district court failed to weigh correctly
the disparity between Gonzalez’s and Young’s prison terms. See 18 U.S.C. § 3553(a)
(listing sentencing disparity as a factor). At sentencing, the court stated that it
considered the need to avoid a sentencing disparity. The record shows that the court
made the decision to impose the 168-month sentence based on Gonzalez’s unique
characteristics, including his pattern of escalating drug offenses and the fact that he
was on probation at the time he committed the criminal act in this case. See United
States v. Plaza, 471 F.3d 876, 880 (8th Cir. 2006) (holding that, when a defendant
and his codefendant are not similarly situated, “the district court does not need to
sentence these individuals to the same length of imprisonment to avoid an
unwarranted sentencing disparity”). For all of the above reasons, we find no abuse
of discretion in the district court’s decision to impose a 168-month sentence.
III.
We affirm.3
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3
We deny Gonzales’s pro se motion to file a supplemental brief as “we
generally do not accept pro se motions or briefs when an appellant is represented by
counsel.” See United States v. Donnell, 596 F.3d 913, 926 (8th Cir. 2010) (quoting
United States v. Barker, 556 F.3d 682, 690 n.3 (8th Cir. 2009)). Likewise, we deny
Gonzalez’s August 28, 2014 motion to correct the record because we find no merit
in his claim that his suppression hearing transcript was altered.
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