United States v. Christopher Perez ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-2130
___________________________
United States of America
Plaintiff - Appellee
v.
Christopher Mateo Perez
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: February 18, 2022
Filed: August 18, 2022
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Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Christopher Perez appeals the denial of his motion to suppress, having
preserved the right to do so pursuant to his conditional plea of guilty. He also appeals
his sentence, challenging his classification as an armed career criminal pursuant to
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and in the alternative,
the calculation of his Guidelines range on other grounds. We affirm the denial of
the motion to suppress. We vacate his sentence and remand for resentencing,
however, because Perez does not have three prior qualifying convictions under the
ACCA.
I. Background
In summer 2019, Davenport Police Officer Seth Farley received information
from a known confidential source that Perez had a pistol and was selling drugs, and
that he was living with Brontianna Hare in Apartment 10 of a Davenport, Iowa,
apartment building. Officer Farley confirmed Hare’s address through a utilities
check. He also knew that Perez had prior controlled substance convictions. Based
on this information, Officer Farley requested a dog sniff of the apartment building.
He did not seek a warrant, relying instead on an agreement between the Davenport
Police Department and the apartment manager to allow police to enter the building
to conduct dog sniffs in the hallways.
In the early morning of August 2, 2019, Officer Brandon Kopeke took his
drug-sniffing dog, Dawn, to the apartment building, entered through an unlocked
back door, and walked to the second floor. Dawn did not alert at any of the second-
floor apartments. On the third floor, Dawn alerted to two apartments, numbers 10
and 12, about three to six inches from the bottom seams of the doors. Each apartment
door is recessed from the main hallway in an alcove. Photos taken later show shoes
and a doormat in the alcove area outside Apartment 10.
Officer Kopeke notified Officer Farley of the alert. Officer Farley then
drafted an affidavit in support of a search warrant for Apartment 10. After a judge
signed the warrant, Officer Farley surveilled the apartment building, saw Perez leave
in a car, and followed him. When law enforcement tried to stop the car, Perez got
out and led them on a brief foot chase, during which he dropped a bag of crack
cocaine. Perez was taken into custody, and law enforcement executed the search
warrant at Hare’s apartment, finding crack cocaine, marijuana, drug paraphernalia,
and a pistol. During questioning, Perez admitted to having a firearm.
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On November 6, 2019, Perez was indicted on one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Perez
filed a motion to suppress evidence, arguing the dog sniff was an illegal search and
evidence discovered through the search of his apartment and his admissions should
therefore be excluded. The district court denied the motion.
On May 4, 2021, Perez entered a conditional guilty plea, preserving the right
to challenge denial of the motion to suppress on appeal. In the plea agreement, the
government agreed to recommend a 180-month sentence if Perez was determined to
be an armed career criminal under the ACCA.
According to the presentence investigation report (PSR), Perez qualified for a
sentencing enhancement under the ACCA, 18 U.S.C. § 924(e), based on three prior
Iowa convictions for delivery of cocaine, and was therefore subject to a 15-year
mandatory minimum sentence and application of United States Sentencing
Guidelines § 4B1.4. His advisory Guidelines range was 188 to 235 months of
imprisonment. Perez objected, asserting that he did not have three ACCA predicate
offenses because the government could not establish that his Iowa cocaine offenses
were committed on different occasions. Perez also objected to the Guidelines range
calculation if the armed career criminal enhancement did not apply.
At sentencing, the government introduced the charging, plea, and judgment
documents for Perez’s Iowa cocaine convictions to establish they occurred on
different occasions. Perez objected to reliance on these documents as improper and
insufficient for the ACCA occasions analysis. The district court overruled all of
Perez’s objections to the PSR and sentenced him to 180 months of imprisonment
and 3 years of supervised release. Perez timely appealed.
II. Motion to Suppress
Perez argues the district court erred in denying his motion to suppress because
the dog sniff violated his Fourth Amendment rights, either as a physical intrusion on
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the curtilage of his home pursuant to Florida v. Jardines, 569 U.S. 1, 6–7 (2013), or
as a violation of his reasonable expectation of privacy in the area immediately
outside his apartment door. If the drug dog sniff was illegal, Perez argues, the
officers otherwise lacked probable cause to search the apartment and the evidence
should have been suppressed. The government argues, however, that even if the
evidence was obtained pursuant to execution of an invalid search warrant, the district
court properly denied Perez’s motion to suppress under the Leon good faith
exception. We agree.
Pursuant to the good faith exception, evidence is suppressed only if “(1) the
affiant misl[ed] the issuing judge with a knowing or reckless false statement; (2) the
issuing judge wholly abandoned her judicial role; (3) the supporting affidavit was
‘so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable’; or (4) the warrant was ‘so facially deficient’ that the
executing officer could not reasonably presume its validity.” United States v.
Notman, 831 F.3d 1084, 1089 (8th Cir. 2016) (quoting United States v. Leon, 468
U.S. 897, 923 (1984)). When, as here, evidence is obtained through a Fourth
Amendment violation, “the detectives’ prewarrant conduct must have been ‘close
enough to the line of validity to make the officers’ belief in the validity of the warrant
objectively reasonable.’” United States v. Cannon, 703 F.3d 407, 413 (8th Cir.
2013) (quoting United States v. Conner, 127 F.3d 663, 667 (8th Cir. 1997)). If,
however, “the officers’ prewarrant conduct is clearly illegal, the good-faith
exception does not apply.” Id. (quotation omitted). Whether law enforcement acted
in objective good faith in executing a search based on a warrant or on controlling
precedent is an issue we review do novo. United States v. Cannon, 703 F.3d 407,
411–12 (8th Cir. 2013).
Before the Supreme Court decided in Jardines that a drug dog sniff on the
front porch of a house is an unlawful intrusion on the curtilage of a home, see 569
U.S. at 6–7, this court rejected a Fourth Amendment challenge to a drug dog sniff
outside an interior apartment door in United States v. Scott, 610 F.3d 1009, 1016
(8th Cir. 2010). At the time Officer Farley requested, and Officer Kopeke
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performed, the dog sniff outside Apartment 10, we had neither expressly overruled
Scott nor explained how Jardines applies to apartment doors in a common hallway.
See United States v. Hopkins, 824 F.3d 726, 732 & n.3 (8th Cir. 2016) (“In this case
we need not consider how Jardines applies to interior hallways of an apartment
complex.”). Based on the state of our caselaw at the time of the search, we find that
the good faith exception applies. It was reasonable for the officers to rely on our
then-applicable precedent that dog sniffs at an interior apartment door are
permissible. See Davis v. United States, 564 U.S. 229, 241 (2011) (“Evidence
obtained during a search conducted in reasonable reliance on binding precedent is
not subject to the exclusionary rule.”). We affirm the denial of Perez’s motion to
suppress.
III. ACCA Predicate Offenses
Perez separately appeals his sentence. He asserts that he is not subject to the
ACCA’s 15-year mandatory minimum sentence because his three prior cocaine
convictions under Iowa Code § 124.401(1)(c)(2) (2013) are not “serious drug
offenses.” See 18 U.S.C. § 924(e)(1). We ordinarily review de novo whether a prior
conviction is an ACCA predicate offense. United States v. Humphrey, 759 F.3d
909, 911 (8th Cir. 2014). But because Perez did not object on this basis at
sentencing, we review for plain error. See United States v. Price, 851 F.3d 824, 826
(8th Cir. 2017) (per curiam). Under plain error review, Perez must show: “(1) an
error, (2) that is plain, and (3) that affects his substantial rights.” United States v.
Coleman, 961 F.3d 1024, 1027 (8th Cir. 2020) (citing United States v. Olano, 507
U.S. 725, 732 (1993)). We will exercise our discretion to correct such an error if it
“seriously affects the fairness, integrity or public reputation of judicial proceedings.”
Id. (quotation omitted).
A. Serious Drug Offense
To be subject to higher statutory penalties under the ACCA, an individual who
violates 18 U.S.C. § 922(g) must have three or more prior convictions for offenses
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that are “violent felon[ies]” or “serious drug offense[s].” 18 U.S.C. § 924(e)(1). As
relevant here, a serious drug offense is defined as: “an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of
ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii).
To determine whether a prior conviction under state law qualifies as a serious
drug offense, “we apply a categorical approach that looks to the statutory definition
of the prior offense, not to the facts underlying a defendant’s prior convictions.”
United States v. Oliver, 987 F.3d 794, 806 (8th Cir. 2021) (quoting United States v.
Boleyn, 929 F.3d 932, 936 (8th Cir. 2019)). We focus solely on whether the
elements of the prior state offense match the federal criteria for a “serious drug
offense” under the ACCA. United States v. Vanoy, 957 F.3d 865, 867 (8th Cir.
2020) (citing Shular v. United States, 140 S. Ct. 779, 782 (2020)). “If the state
offense sweeps more broadly, or punishes more conduct than the federal definition,
the conviction does not qualify as a predicate offense.” Id. Where a state statute is
unambiguously broader than federal law, the categorical analysis ends with the text
of the statutes. Gonzalez v. Wilkinson, 990 F.3d 654, 660–61 (8th Cir. 2021).
In 2013, Perez was convicted of three counts of delivery of a controlled
substance—cocaine—in violation of Iowa Code § 124.401(1)(c)(2). These
convictions are serious drug offenses under the ACCA if the definition of cocaine
under Iowa law, Iowa Code § 124.206(2)(d), is a categorical match with the federal
definition of cocaine as provided in the Controlled Substances Act (CSA), 21 U.S.C.
§ 812(c) Schedule II(a)(4). The first question is which versions of the state and
federal definitions we should compare. The parties agree we should use the Iowa
definition of cocaine at the time of Perez’s state convictions in 2013. But Perez
argues we should compare that to the definition in the federal drug schedule in effect
at the time of his instant federal offense in 2019, while the government argues we
should compare it to the federal definition in 2013.
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We conclude that the relevant federal definition for ACCA purposes is the
definition in effect at the time of the federal offense—for Perez, 2019. Whether a
previous state conviction is a serious drug offense only becomes salient at the time
of sentencing for a federal conviction under 18 U.S.C. § 922(g). Therefore, the
federal law in effect at the time of the federal sentencing is the relevant definition
for ACCA purposes. As the Eleventh Circuit recently explained, due process and
fair notice considerations compel that a sentencing court consult the federal drug
schedule in force at the time of the federal offense so that an actor has notice “not
only that his conduct violated federal law, but also of his potential minimum and
maximum penalty for his violation and whether his prior felony convictions could
affect those penalties.” United States v. Jackson, 36 F.4th 1294, 1300 (11th Cir.
2022). And as the Ninth Circuit observed, “it would be illogical to conclude that
federal sentencing law attaches culpability and dangerousness to an act that, at the
time of [federal] sentencing, Congress has concluded is not culpable and dangerous.”
United States v. Bautista, 989 F.3d 698, 703 (9th Cir. 2021) (quotation omitted).
Applying now-superseded federal drug definitions would also undermine
Congress’s ability to revise federal criminal law as it deemed appropriate. See id.;
see also United States v. Hope, 28 F.4th 487, 504–05 (4th Cir. 2022) (agreeing with
the Ninth Circuit’s analysis and rejecting the government’s “contention that the
status of a prior state conviction under the ACCA is determined by the federal law
that applied at the time of that state conviction, not the time of federal sentencing”
(cleaned up)).
McNeill v. United States, 563 U.S. 816 (2011), is not to the contrary. In
McNeill, the Supreme Court analyzed “how a federal court should determine the
maximum sentence for a prior state drug offense for ACCA purposes,” specifically
whether the district court should rely on a subsequent change in state law to
determine whether a previous conviction was a serious drug offense under the
ACCA. Id. at 817. The Court held the “ACCA requires a federal sentencing court
to consult the maximum sentence applicable to a defendant’s previous drug offense
at the time of his conviction for that offense” because “[i]t cannot be correct that
subsequent changes in state law can erase an earlier conviction for ACCA purposes.”
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Id. at 820, 823; see also United States v. Abdulaziz, 998 F.3d 519, 525 (1st Cir.
2021) (“McNeill expresses the principle that the elements of the state offense of
conviction are locked in at the time of that conviction.” (quoting United States v.
Williams, 850 F. App’x 393, 399 (6th Cir. 2021) (unpublished))).
But the question presented here is different: Do we apply the version of the
federal statute in force at the time of Perez’s instant federal offense? In ordinary
circumstances, the answer is an easy “yes.” Yet the government advocates a view
that would require the court, under these circumstances, to use a definition of cocaine
that is no longer in effect. McNeill did not address this. See Bautista, 989 F.3d at
703 (“McNeill nowhere implies that the court must ignore current federal law and
turn to a superseded version of the United States Code.”); Hope, 28 F.4th at 505
(concluding that McNeill does not prohibit courts from considering changes to
federal law for the purposes of the ACCA). And the reasoning in McNeill regarding
state law does not translate to this issue concerning the federal drug statute. Contrary
to the government’s position that later changes in federal law would likewise “erase”
prior state convictions for ACCA purposes, relying on current federal definitions
effectuates Congress’s intent to remove certain substances from classification as
federal drug offenses. The government’s insistence that we deviate from the usual
rule of applying the federal law in force at the time of a federal offense is unavailing.
We also reject the government’s argument that we rely on Doe v. Sessions,
886 F.3d 203 (2d Cir. 2018). In Doe, the Second Circuit held that when applying
the categorical approach to state drug offenses in removal proceedings,
“removability depends on whether a state drug schedule sweeps more broadly than
the CSA Schedules in force at the time of the alien’s conviction, and not at the time
that his removal proceedings are initiated.” Id. at 208. This rationale is specific to
immigration law. In the removal context, if a noncitizen faces criminal charges,
those charges may immediately subject the noncitizen to immigration consequences.
See, e.g., Bautista, 989 F.3d at 704 (distinguishing categorical analysis in the
immigration context based on “the policy importance of disclosure of the then-
understood immigration consequences to defendants considering a guilty plea to the
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state-law charge”); Abdulaziz, 998 F.3d at 531 (finding no similar concern in the
serious drug offense given the “gap in time that necessarily exists” between a prior
state conviction and federal consequence and the “highly contingent nature” of any
consequence). In the context of the ACCA, in contrast, there is no risk of immediate
federal consequences from a state law conviction. Consequences of a prior
conviction for ACCA purposes only arise if the person later is convicted of a
qualifying federal offense, so there is no need for certainty about possible
consequences under federal criminal law at the time of a state conviction. Any future
federal consequences are determined based on the federal law at the time of the
federal offense that triggers those consequences. See Bautista, 989 F.3d at 704 (“[I]t
is clear that the issue at sentencing is the nature of the prior state-law crime under
federal law at the time of sentencing rather than at the time of the prior state-law
conviction.”).
We find that the categorical approach requires comparison of the state drug
schedule at the time of the prior state offense to the federal schedule at the time of
the federal offense.1
Turning to the statutes at issue in Perez’s case, at the time of Perez’s prior
convictions, Iowa law defined cocaine as:
1
This conclusion puts us in agreement with all other circuit courts of appeals
to have addressed the question of whether, under the categorical approach, a prior
state drug conviction should be compared to the current version of the CSA or the
version in effect at the time of the prior state conviction. See, e.g., Abdulaziz, 998
F.3d at 525–27 (First Circuit); Hope, 28 F.4th at 504–05 (Fourth Circuit); Bautista,
989 F.3d at 703 (Ninth Circuit); Jackson, 36 F.4th at 1297, 1306 (Eleventh Circuit).
The First Circuit in Abdulaziz and the Ninth Circuit in Bautista decided whether to
compare the definitions of prior state drug offenses to the federal CSA at the time of
the federal offense for Guidelines purposes, but we find their analyses of McNeill,
563 U.S. 816, and Doe, 886 F.3d 203, persuasive for the ACCA as well, because
those courts apply the categorical approach using the CSA for Guidelines
enhancements just as for ACCA mandatory minimum sentences.
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Coca leaves and any salt, compound, derivative, or preparation of coca
leaves. Decocainized coca leaves or extractions of coca leaves, which
extractions do not contain cocaine or ecgonine, are excluded from this
paragraph. The following substances and their salts, optical and
geometric isomers, derivatives, and salts of derivatives and optical and
geometric isomers, and any salt, compound, derivative, or preparation
thereof that is chemically equivalent or identical to any of such
substances, are included in this paragraph:
(1) Cocaine.
(2) Ecgonine.
Iowa Code § 124.206(2)(d) (2013). At the time of Perez’s instant federal firearms
offense, the federal drug schedules defined cocaine as:
(4) Coca leaves and any salt, compound, derivative or preparation of
coca leaves (including cocaine and ecgonine and their salts, isomers,
derivatives and salts of isomers and derivatives), and any salt,
compound, derivative, or preparation thereof which is chemically
equivalent or identical with any of these substances, except that the
substances shall not include:
(i) Decocainized coca leaves or extraction of coca leaves, which
extractions do not contain cocaine or ecgonine; or
(ii) Ioflupane.
21 C.F.R. § 1308.12(b)(4) (2018) (emphasis added). Because Perez’s state statute
of conviction included Ioflupane whereas the CSA specifically excludes Ioflupane
as a controlled substance, the state statute is overbroad on its face, and our
categorical analysis ends with the text of the statute. Gonzalez, 990 F.3d at 660–61.
Perez’s prior offenses are not serious drug offenses under the ACCA, and the district
court erred by sentencing Perez as an armed career criminal.
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B. Plain Error
Under plain error review, three of the four elements are easily met. The
district court erred as a matter of law, the error affects Perez’s substantial rights by
imposing a 15-year minimum sentence when a 10-year maximum sentence would
otherwise apply, and this type of error affects the fairness of the judicial proceedings.
Whether the error was plain is a closer question. An error is plain when a district
court’s decision is clearly contrary to law at the time of appeal. United States v.
Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc) (quoting Johnson v. United
States, 520 U.S. 461, 468 (1997)). At present, at least four of our sister circuits have
addressed the same or a closely related question, all concluding that the categorical
comparison is between the state law at the time of prior conviction and the federal
law at the time of federal offense. This conclusion flows easily from the text and
purpose of enhanced mandatory sentences under the ACCA, as well as from
constitutional due process and fair notice concerns. These conditions are sufficient
to conclude that the district court’s decision, while not necessarily clearly contrary
to law at the time of Perez’s sentencing—before the current wave of circuit court
decisions on this issue—is plainly contrary to the current state of the law, which is
sufficient to reverse even under plain error review. See Johnson, 520 U.S. at 467(“At a minimum, . . . the error must be plain under current law.” (quotations
omitted)). Accord Bautista, 989 F.3d at 705 (finding plain error where the district
court erroneously compared the elements of a state law crime as they existed at the
time of state conviction against the federal law at the time of the state law conviction
rather than at the time of federal sentencing).
We remand for resentencing without the ACCA 15-year mandatory minimum
sentence.2
2
Perez also argues that the government failed to prove his prior convictions
were committed on separate occasions. Because we find his prior convictions do
not qualify as serious drug offenses, we do not reach this issue.
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IV. Guidelines Calculation
Perez raises additional issues with the district court’s calculation of his
Guidelines range absent the ACCA designation. We review the district court’s
interpretation and application of the Guidelines de novo, United States v. Barrientos,
670 F.3d 870, 873 (8th Cir. 2012), including whether a prior conviction qualifies as
a controlled substance offense under the Guidelines, United States v. Williams, 926
F.3d 966, 969 (8th Cir. 2019).
A. Controlled Substance Offenses 3
Guidelines § 2K2.1(a)(3) imposes a base offense level of 22 if “(A) the offense
involved a (i) semiautomatic firearm that is capable of accepting a large capacity
magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a); and (B) the
defendant committed any part of the instant offense subsequent to sustaining one
felony conviction of either a crime of violence or a controlled substance offense.”
The district court applied § 2K2.1(a)(3) because the firearm Perez possessed was a
semiautomatic firearm capable of accepting a large capacity magazine and he had
committed the instant offense after sustaining a prior conviction for a controlled
substance offense. The question on appeal is whether Perez’s Iowa cocaine
convictions are indeed “controlled substance offenses” for purposes of the
Guidelines.
As used in § 2K2.1(a)(3), “controlled substance offense” is defined as:
an offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that prohibits the manufacture, import,
3
In addition to the procedural issues discussed herein, Perez also argues that
his prior convictions do not qualify as controlled substance offenses because the
Iowa statutes include inchoate offenses but the text of USSG § 4B1.2(b) does not.
As recognized by both parties, this argument is foreclosed by United States v.
Merritt, 934 F.3d 809, 811 (8th Cir. 2019) (stating that under the law of the circuit,
“conspiracy to commit a controlled substance offense is itself a controlled substance
offense as defined by the Guidelines”).
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export, distribution, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.
USSG § 4B1.2(b); USSG § 2K2.1, comment. (n.1). This circuit recently held in
United States v. Henderson that the term “controlled substance” in § 4B1.2(b) is not
limited to definitions in the CSA because there is no such limitation in the text of the
definition at USSG § 4B1.2. See 11 F.4th 713, 718–19 (8th Cir. 2021). Rather, the
court found that the plain meaning of the Guidelines generally includes “state-law
offenses related to controlled or counterfeit substances punished by imprisonment
for a term exceeding one year.” Id. at 718 (quoting United States v. Ruth, 966 F.3d
642, 654 (7th Cir. 2020)). And this court has also held that whether a prior state
conviction is a controlled substance offense for Guidelines purposes is based on the
law at the time of conviction, without reference to current state law. 4 United States
v. Bailey, 37 F.4th 467, 469–70 (8th Cir. 2022) (per curiam).
4
Neither Henderson nor Bailey is inconsistent with the above analysis
regarding the categorical approach under the ACCA for comparing state statutes of
conviction with the federal CSA at the time of a federal offense. Where the ACCA
imposes a higher mandatory minimum sentence for a federal firearms offense based
on whether the defendant has previously committed a “serious drug offense” as
defined under the federal Controlled Substances Act, the Guidelines provide
guidance for sentencing based on a defendant’s criminal history, risk of recidivism,
and other relevant characteristics, including whether any prior state law offenses
were related to controlled or counterfeit substances under state law. Further, while
McNeill does not apply to the ACCA analysis in this case for the reasons stated
above, under the Guidelines as interpreted by this court in Henderson and Bailey the
focus is solely on Perez’s prior state law offenses, which McNeill requires be
considered only in light of then-applicable state law. See, e.g., United States v.
Hope, 28 F.4th 487, 505 (4th Cir. 2022) (contrasting the situation in which a change
in state law is at issue from when a change in federal law is at issue). Indeed, the
Fourth Circuit also recently held that the ACCA categorial approach requires
comparison of state law from the time of prior conviction with the CSA at the time
of offense, see id., despite also having decided that a controlled substance offense
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These decisions control the result here. Perez’s uncontested prior cocaine
convictions are controlled substance offenses under Iowa law for purposes of
calculating his advisory Guidelines range, irrespective of later changes in the
definition of “cocaine” under Iowa state law or federal law.
B. Criminal History Points
Lastly, Perez argues that no criminal history point should be assigned to his
prior Illinois conviction for misdemeanor fleeing or attempting to elude a peace
officer under 625 Ill. Comp. Stat. 5/11-204(a), for which he was sentenced to pay a
$245 fine. Without the ACCA enhancement, the one point assigned to this offense
increased Perez’s criminal history category from III to IV.
United States Sentencing Guidelines § 4A1.2(c)(1) instructs that criminal
history points are calculated based on “all felony offenses” and on misdemeanors
and petty offenses, unless the misdemeanor is listed in § 4A1.2(c)(1) or is an offense
“similar to” a listed offense, including “hindering or failure to obey a police officer”
and “resisting arrest.” First, Perez asserts that his misdemeanor conviction under
625 Ill. Comp. Stat. 5/11-204(a) is a listed offense because it is “hindering or failure
to obey a police officer.”
Perez’s statute of conviction reads:
Any driver or operator of a motor vehicle who, having been given a
visual or audible signal by a peace officer directing such driver or
operator to bring his vehicle to a stop, willfully fails or refuses to obey
such direction, increases his speed, extinguishes his lights, or otherwise
flees or attempts to elude the officer, is guilty of a Class A
misdemeanor.
for Guidelines purposes depends only on the relevant state law of conviction, see
United States v. Ward, 972 F.3d 364, 372 (4th Cir. 2020).
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625 Ill. Comp. Stat. § 5/11-204(a) (2013) (emphasis added). Though the offense
includes an aspect of failing or refusing to obey the direction of a peace officer, we
find that it is not a listed offense. It is not exactly “hindering or failure to obey a
police officer,” because the Illinois statute has the added requirement that the person
be a “driver or operator of a motor vehicle.” And Illinois law contains a separate
offense that encompasses resisting arrest, codified in a different chapter at 720 Ill.
Comp. Stat. 5/31-1(a) (2012) (“Resisting or obstructing a peace officer”): “a person
who knowingly resists or obstructs the performance by one known to the person to
be a peace officer, . . . of any authorized act within his or her official capacity
commits a Class A misdemeanor.”
Perez argues in the alternative that, even if fleeing is not a listed offense, it is
“similar to” a misdemeanor for “hindering or failure to obey a police officer” and
“resisting arrest,” and therefore should not have been counted in his criminal history
score. To determine whether an unlisted offense is similar to an offense listed in
§ 4A1.2(c)(1), the Guidelines applications notes indicate:
the court should use a common sense approach that includes
consideration of relevant factors such as (i) a comparison of
punishments imposed for the listed and unlisted offenses; (ii) the
perceived seriousness of the offense as indicated by the level of
punishment; (iii) the elements of the offense; (iv) the level of culpability
involved; and (v) the degree to which the commission of the offense
indicates a likelihood of recurring criminal conduct.
USSG § 4A1.2, comment. (n.12(A)). The government concedes that the first two
factors weigh in favor of finding that fleeing under Illinois law is similar to resisting
arrest and hindering or failure to obey a police officer. Both are Class A
misdemeanors and the seriousness of the offense—as indicated by the level of
punishment—is equivalent. As to the third factor, the government points out that
under the Illinois statute at issue, fleeing includes as an element that the defendant
be the “driver or operator of a motor vehicle.” Resisting arrest and hindering or
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failure to obey a police officer under 720 Ill. Comp. Stat. 5/31-1(a), in contrast, do
not require the operation of a motor vehicle.
Under a common-sense approach, we conclude that fleeing a peace officer
under 625 Ill. Comp. Stat. 5/11-204(a) is materially dissimilar from resisting arrest
and hindering or failure to obey a police officer under Illinois law. Fleeing a peace
officer requires operation of a motor vehicle, which increases the danger posed to
the public by the offense. See United States v. Mendez-Lopez, 338 F.3d 1153, 1160–
61 (10th Cir. 2003) (“Committing an offense while in a motor vehicle inherently
increases the potential threat to public safety.”). The offense of fleeing a peace
officer is also found in a different chapter of the Illinois Statutes than is resisting
arrest; the former is under the “Vehicles” chapter, while the latter is an “offense
affecting governmental functions.” See United States v. Ruacho, 746 F.3d 850, 854
(8th Cir. 2014) (per curiam) (applying the test from USSG § 4A1.2 comment. (n.12)
and concluding the offenses were dissimilar, a result supported in part by the fact
that they were “found in separate chapters of the Minnesota Statutes”). Assigning
one criminal history point to Perez’s conviction for fleeing a peace officer under
Illinois law was not error.
V. Conclusion
We affirm the denial of Perez’s motion to suppress, but we vacate his sentence
and remand to the district court for resentencing consistent with this opinion.
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KELLY, Circuit Judge, concurring.
I agree that the motion to suppress was properly denied under the good faith
exception, but I would find that the drug dog sniff of Apartment 10 was a violation
of Perez’s Fourth Amendment rights.5
Curtilage is the area “immediately surrounding and associated with the home”
and is considered “part of the home itself for Fourth Amendment purposes.” Florida
v. Jardines, 569 U.S. 1, 6 (quoting Oliver v. United States, 466 U.S. 170, 180
(1984)). “[W]hether a particular area is part of the curtilage of an individual’s
residence requires consideration of factors that bear upon whether an individual
reasonably may expect that the area in question should be treated as the home itself.”
United States v. Hopkins, 824 F.3d 726, 731 (8th Cir. 2016) (quoting United States
v. Bausby, 720 F.3d 652, 656 (8th Cir. 2013)). This court analyzes four factors to
determine if an area is curtilage (the “Dunn factors”): (1) the proximity to the home
of the area claimed to be curtilage, (2) whether the area is included within an
enclosure surrounding the home, (3) the nature of the uses to which the area is put,
5
Before reaching the good faith exception, I would also examine the
sufficiency of the warrant affidavit without the information from the unlawful
search. United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004).
“Probable cause exists, if under the totality of the circumstances, a showing of facts
can be made sufficient to create a fair probability that evidence of a crime will be
found in the place to be searched.” United States v. Johnson, 848 F.3d 872, 876 (8th
Cir. 2017). Here, the drug dog alert was the only evidence in the warrant affidavit
linking the suspected contraband to the place to be searched. Officer Farley did not
corroborate that Perez was living in Apartment 10—only that Hare’s name was on
the unit’s utilities. And the informant did not say that Perez was selling drugs out of
Apartment 10 or that the pistol or any drugs were stored in the apartment. Officer
Farley offered a generalized opinion that a person who possesses or sells controlled
substances “frequently maintain records, controlled substances, [and] proceeds . . .
in their residence(s),” but this is insufficient to establish the requisite nexus between
the specific evidence sought—drugs and a gun associated with Perez—and the
precise location to be searched—Apartment 10. Without the evidence obtained from
the dog sniff, the warrant in this case was not supported by probable cause.
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and (4) the steps taken by the resident to protect the area from observation by people
passing by. Bausby, 720 F.3d at 656 (quoting United States v. Dunn, 480 U.S. 294,
301 (1987)). The factors “are not mechanically applied and are considered
together.” Hopkins, 824 F.3d at 731.
Although we have not considered, in light of Jardines, whether the area around
an apartment door that opens into an interior common hallway may be curtilage
based on the Dunn factors, see Hopkins, 824 F.3d at 732 n.3 (“In this case we need
not consider how Jardines applies to interior hallways of an apartment complex.”),
we have twice examined whether there is curtilage around the entrance to an
exterior-facing apartment. See Hopkins, 824 F.3d at 731–33; United States v.
Burston, 806 F.3d 1123, 1126–28 (8th Cir. 2015). The reasoning from these cases
instructs my analysis here.
The first factor, proximity of the area to the home, weighs strongly in favor of
finding that the search occurred within the curtilage. Dawn sniffed and alerted
within three to six inches from the bottom seam of the door to Apartment 10. See
Hopkins, 824 F.3d at 732 (“Officer Fear testified that Marco was trained ‘to get as
close to the source as possible’ and that he was within ‘six to eight inches’ of the
door when he alerted and ‘actually sniffed the creases of the door.’ That proximity
strongly supports a finding of curtilage.”); Burston, 806 F.3d at 1127 (“[T]he area
sniffed was in close proximity to Burston’s apartment—six to ten inches. That area
is ‘immediately surrounding’ his residence.”); see also Jardines, 569 U.S. at 4(noting the dog sniffed the base of the front door).
The second factor, whether the area searched was within an enclosure
surrounding the home, does not translate as easily from the context of a single-family
home to an interior-facing apartment in a multi-family building. There was an
alcove around the apartment door, but the apartment was not otherwise enclosed or
separated from the rest of the hallway. This factor likely weighs against a finding
of curtilage, but it is not dispositive. Indeed, there was no enclosure around the
exterior apartment doors or windows in either Hopkins or Burston, yet those areas
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were found to be curtilage. Nor was the front porch enclosed in Jardines. See, e.g.,
Hopkins, 824 F.3d at 732 (“The second and fourth Dunn factors weigh against a
finding of curtilage in this area because the front of the door was not enclosed by a
fence or wall and was not protected from observation by visitors (though neither was
the front porch in Jardines, see 133 S. Ct. at 1413).”).
Third, the record indicates that the area in front of each apartment door was
for that tenant’s personal use, with photos showing a floor mat and at least two pair
of shoes in front of Apartment 10. The government takes a broader view,
emphasizing that the common hallway is open to all tenants and visitors. But it is
not the use of the hallway generally that is at issue. It is the use of the area in
question: the area immediately surrounding the door to Apartment 10, recessed from
the common hallway, where the search occurred.
In Hopkins, this court noted that “[e]ven [the defendant’s] neighbor would not
pass within 6 to 8 inches of Hopkins’ door when going to his own.” 824 F.3d at 732.
The same is true of the door to Apartment 10. The court further noted that there was
no “‘common hallway’ which all residents or guests must use to reach their units.”
Id. And while there is a common hallway here, the search did not take place in the
portion of the hallway that “all residents or guests must use to reach their units.”
The area where the search took place was mere inches in front of a door that is set
back from the main area of the hallway. Under the same rationale applied in
Hopkins, there is no reason a neighbor or a guest of the building “must” be as close
to the door of Apartment 10 as the dog was when performing the drug search.
Rather, “[t]he area within a foot of the only door to the [apartment] would be used
every day by its residents as they came and went.” Id. The threshold of an apartment
door is for the personal use of each tenant, and the third Dunn factor weighs in favor
of finding it is curtilage.
Lastly, it does not appear that Perez or Hare took any steps to protect the area
around the apartment door from observation (though it is unclear whether they
could), making the fourth Dunn factor weigh against concluding the area is the
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curtilage. Like the second factor, the fourth factor was found lacking in Hopkins,
too, but that did not preclude us from finding the area to be curtilage. See 824 F.3d
at 732.
In sum, the first and third Dunn factors weigh in favor of the area searched—
several inches from the seam of the apartment door—being curtilage, while the
second and fourth weigh against. Treating the apartment in this case the same as the
apartments in Hopkins and Burston, the area searched was curtilage based on the
Dunn factors.
The question remains, however, whether there is something peculiar about an
interior apartment door, as compared to an outward-facing apartment door, that
alters the result. Curtilage has been defined as “the area ‘immediately surrounding
and associated with the home’” and is “part of the home itself for Fourth Amendment
purposes,” Jardines, 569 U.S. at 6 (emphasis added) (quoting Oliver, 466 U.S. at
180), and many people call an apartment home. See United States v. Whitaker, 820
F.3d 849, 854 (7th Cir. 2016) (“Distinguishing Jardines based on the differences
between the front porch of a stand-alone house and the closed hallways of an
apartment building draws arbitrary lines.”). Though Perez could not plant a bush in
front of his apartment door nor place a grill outside it, see Burston, 806 F.3d at 1125,
the notion of curtilage—the area immediately surrounding the home—cannot be
dependent on factors that can exist only when an apartment unit has an outside facing
entrance.
Further, that a common hallway in an apartment building may not constitute
curtilage in its entirety does not render the Dunn factors inapplicable either. Courts
routinely make determinations about how far curtilage extends. See Jardines, 569
U.S. at 7 (noting that, “[w]hile the boundaries of the curtilage are generally clearly
marked, the conception defining the curtilage is at any rate familiar enough that it is
easily understood from our daily experience.” (quotation omitted)). In Hopkins, a
walkway jutted off from a sidewalk in a courtyard and led to a concrete slab in front
of two outdoor-facing apartment doors about one foot apart. 824 F.3d at 729. Both
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the sidewalk and walkway were for shared use, at minimum by the tenants of the
two adjacent apartments, and this court concluded that the commonly used sidewalk
was not curtilage. But the area immediately in front of Hopkins’s apartment door,
which was “‘common’ only to Hopkins and his immediate neighbor,” was. See id.
at 732. In my view, the same reasoning applies here: there is a meaningful
distinction between a common hallway and the area inches from the bottom seam of
an individual apartment door. The hallway in Perez’s apartment building is
commonly used space, but the area immediately in front of the door is so closely
associated with his individual residence that it can be considered part of the home.
Cf. Whitaker, 820 F.3d at 854 (discussing different types of apartment buildings and
suggesting that distinguishing between them would be arbitrary).
In light of Jardines and our post-Jardines cases, there is a meaningful
distinction between the common hallway and the area immediately surrounding the
apartment door where the search occurred in this case, and I would conclude that the
dog sniff was an unlicensed physical intrusion on the curtilage of Apartment 10.
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