United States v. Michael Allebach ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2916
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*
United States of America, *
*
Plaintiff—Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Michael Alan Allebach, *
*
Defendant—Appellant. *
*
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Submitted: April 15, 2008
Filed: May 21, 2008
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Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Michael Allebach entered a conditional guilty plea to possession of powder
cocaine with intent to manufacture five grams or more of cocaine base, in violation
of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). The district court1 sentenced Allebach to 136
months’ imprisonment. Allebach appeals the district court’s denial of his motion to
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
suppress evidence obtained during a search of Allebach’s residence conducted
pursuant to a warrant and the reasonableness of his sentence. We affirm.
I. Background
After receiving citizen complaints of frequent short-term traffic at Allebach’s
residence, police officers picked up trash bags at Allebach’s residence after they had
been placed on the curb for pickup. During a search of the bags at the police station,
officers found two plastic bags with white residue, two corners torn from plastic bags,
Brillo pads, a film canister with white residue, and documents bearing Allebach’s
name and address. The white residue on the plastic bags tested positive for cocaine.
Officers included this information in the application for a search warrant to search
Allebach’s residence, and a magistrate judge approved the warrant application.
During the search, officers found 30.39 grams of powder cocaine, 3.29 grams of crack
cocaine, powder and crack cocaine paraphernalia, and items used to manufacture
powder cocaine into crack cocaine. Following the search, Allebach waived his rights
and admitted to officers he manufactured crack cocaine. Allebach said that he had
been using cocaine for about a year and a half, that he obtained cocaine from three
sources, and that he converted the powder cocaine into crack cocaine.
II. Motion to Suppress
Allebach moved to suppress the fruits of the search of his residence, arguing
that the trash contents were insufficient to establish probable cause. The magistrate
judge2 found the materials in the trash were sufficient to establish probable cause. The
district court adopted the magistrate judge’s report and recommendation, over
Allebach’s timely objections.
2
The Honorable John A. Jarvey, then Chief Magistrate Judge for the United
States District Court for the Northern District of Iowa, now United States District
Judge for the Southern District of Iowa.
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Allebach argues the district court erred by not granting his motion to suppress.
He alleges the warrant authorizing a search of his residence was invalid because the
materials from his trash did not constitute probable cause. We have little hesitancy
in concluding a reasonable magistrate would conclude the materials found in the
trash—two plastic bags with cocaine residue, two corners torn from plastic bags,3
Brillo pads,4 a film canister5 with white residue—were sufficient to establish probable
cause that cocaine was being possessed and consumed in Allebach’s residence. See
United States v. Briscoe, 317 F.3d 906, 908 (8th Cir. 2003) (holding marijuana seeds
and stems found in the garbage were “sufficient stand-alone evidence to establish
probable cause”). The warrant was properly issued, and the district court did not err
in denying Allebach’s motion to suppress the evidence.
Even if the warrant were not supported by probable cause, the Leon good faith
exception would allow admission of the evidence. United States v. Leon, 468 U.S.
897 (1984). Allebach has neither claimed, nor is there evidence of anything that
might prevent Leon from applying: police misconduct, the magistrate judge
abandoning a neutral and detached role, objective unreasonableness, or a facially
deficient warrant. See United States v. Proell, 485 F.3d 427, 431 (8th Cir. 2006)
(noting the exception does not apply in these four circumstances because the officer’s
3
“Plastic sandwich bags with the corners torn . . . are commonly used to
distribute crack.” United States v. Sandifer, 188 F.3d 992, 993 (8th Cir. 1999).
4
Brillo pads can be used as filters for crack pipes. United States v. Lewin, 900
F.2d 145, 147 (8th Cir. 1990) (stating “[t]he officer explained that Brillo pads are
considered to be drug paraphernalia because small pieces of steel wool are often used
as filters in pipes used to smoke crack”).
5
Film canisters can be used to store and carry controlled substances. See United
States v. Bustos-Torres, 396 F.3d 935, 940 (8th Cir. 2005) (noting officers found a
substance appearing to be cocaine in a film container); United States v. Sanders, 341
F.3d 809, 813 (8th Cir. 2003) (noting officers found methamphetamine in a film
canister).
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reliance on the warrant would be unreasonable). Thus, we find the Leon exception
applies and the district court did not err in denying Allebach’s motion to suppress the
evidence.
III. Sentencing Issues
Allebach raises a number of sentencing issues. In imposing the sentence, the
district court started by noting the advisory guidelines range, including a three-level
reduction for acceptance of responsibility, was 151 to 188 months. The court also
took note of the then-pending amendment to the crack cocaine guidelines, which
would result in a sentencing range of 121 to 151 months. The government moved for
a cooperation-based departure under U.S.S.G. § 5K1.1, and the court granted the
motion, using 151 months as a starting point. The court then departed 10% down to
136 months and imposed that sentence.
We start with Allebach’s challenge to the guidelines computation in this case
based on his argument involving the quantity of cocaine base used to determine the
base offense level. The presentence investigation report concluded Allebach’s
relevant conduct involved more than 500 grams of cocaine base. Allebach
acknowledges that, based on his admissions to law enforcement, the probation office
correctly determined that more than 500 grams of cocaine base were used and
distributed by him. However, he argued to the district court and now argues on appeal
that only the cocaine base that he manufactured, not the cocaine base that he
purchased, should be counted for guidelines purposes. He argues that since he was
convicted of possessing powder cocaine with the intent to manufacture cocaine base,
any cocaine base he purchased as cocaine base and did not manufacture should not be
included in his relevant conduct.
We review the district court’s interpretation of the guidelines de novo, United
States v. Fraser, 243 F.3d 473, 474 (8th Cir. 2001), and the court’s relevant conduct
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determination for clear error, see United States v. Adams, 451 F.3d 471, 473 (8th Cir.
2006) (“Whether uncharged conduct is part of the same course of conduct as the
offense of conviction is a fact-intensive inquiry. Thus, we review the sentencing
court’s relevant conduct findings for clear error.” (internal quotation omitted)). In
determining whether conduct is relevant, the “district court should consider the
similarity, regularity, and temporal proximity of the conduct.” United States v.
Anderson, 243 F.3d 478, 485 (8th Cir. 2001) (internal quotations omitted). We find
the district court did not clearly err in determining Allebach’s possession of crack
cocaine was part of the same course of conduct as his possession with intent to
manufacture crack cocaine. See Fraser, 243 F.3d at 474–75 (citing with approval
United States v. Wood, 57 F.3d 913, 920 (10th Cir. 1995), which held “personal-use
quantities [are] relevant conduct in a conviction for manufacturing a controlled
substance”).
Allebach further argues that the district court’s failure to impose a non-
guidelines sentence was procedurally inadequate and substantively unreasonable. As
discussed above, the district court followed proper procedures in this case, calculating
the base offense level and considering departures and the 18 U.S.C. § 3553(a) factors.
Allebach argues his case is unusual, and thus he should have been sentenced below
the guidelines because he was an addict, he only distributed crack cocaine to his
friends, and he was involved with manufacturing and distribution for only a short
period of time. However, this argument fails, as the district court considered these
factors and adequately stated the reasons for the sentence. See United States v. Sigala,
— F.3d —, 07-1722, 2008 WL 878348, *1 (8th Cir. Apr. 3, 2008). The court declined
to grant a variance, finding “nothing unusual about this case that takes it out of the
advisory guidelines range.” We do not find that determination to be an abuse of
discretion. See United States v. Clay, — F.3d —, 07-3050, 2008 WL 1958993, *2
(8th Cir. May 7, 2008) (finding a “district court did not abuse its discretion in denying
[a] downward variance”). “‘[W]hen a judge decides simply to apply the Guidelines
to a particular case, doing so will not necessarily require lengthy explanation.’”
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Sigala, — F.3d —, 07-1722, 2008 WL 878348, * 1 (quoting Rita v. United States, —
U.S. —, 127 S. Ct. 2456, 2468 (2007)).
Allebach also argues that the district court’s failure to consider the then-pending
guidelines amendment was unreasonable. We first note that the district court did
consider what the sentence would be under the amendment and explained it was using
151 months as a starting point for the government’s § 5K1.1 motion, a sentence that
would be within the guidelines under the then-current guidelines and the amendment.
Furthermore, the district court was not required to consider the pending guidelines
amendment. Consideration of the pending amendment is merely permissible, not
required. See United States v. Shields, 519 F.3d 836, 838 (8th Cir. 2008) (concluding
the district court has discretion on remand whether to consider proposed
amendments); United States v. Meyer, 452 F.3d 998, 1001–02 (8th Cir. 2006) (“While
our court cannot retrospectively apply enhancing amendment to the guidelines in order
to calculate the defendant’s guidelines range, such amendments are instructive as to
whether a sentence outside of the guidelines falls within the range of
reasonableness.”).6
We affirm.
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6
As a practical matter this issue is essentially moot. The sentencing commission
has made the guidelines amendment retroactive. See U.S.S.G. app. C, amend. 713
(Supp. 2008) cited in United States v. Whiting, — F.3d —, No. 07-2599, 2008 WL
961171, *5 (8th Cir. Apr. 10, 2008). The district court has the discretion to resentence
Allebach using the amended guidelines.
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