United States v. James Flaherty Hill ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1536
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Flaherty Hill
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 15, 2021
Filed: August 10, 2021
[Published]
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
An indictment charged James Flaherty Hill with conspiracy to distribute and
possession with intent to distribute 500 grams or more of a methamphetamine mixture
in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. After the district court1
denied his motion to suppress evidence seized during a warrant search, a jury
convicted Hill of both charges. The district court, varying downward, sentenced him
to 204 months’ imprisonment. Hill appeals, arguing the court erred in denying his
motion to suppress and imposed a substantively unreasonable sentence. We affirm.
I. Suppression Issues.
In November 2016, drug task force agents were investigating drug dealer James
Johnson (“Jay”). On November 10, Special Agent Matt Lund applied for a warrant
to search a single family residence on Palm Street in Coon Rapids, Minnesota. His
supporting affidavit recited that a known cooperating defendant (CD) was recently
arrested with a large quantity of suspected methamphetamine. Interviewed by Lund
in jail, the CD said Jay had told him to come to the house on Palm Street to pick up
a large quantity of meth. The CD entered the house where Jay gave him a half pound
of meth. The CD was arrested after leaving. The CD said guns and a man named
“Whitey” were in the house. Shown unlabeled photos, the CD identified Jay as
Johnson and Whitey as Hill, the owner of the Palm Street residence. Lund applied
for a warrant to search the residence, “any appurtenant structures thereto, including
garages, sheds and storage areas and the homes [sic] curtilage,” and a “[l]arge white
pull behind camping trailer in driveway.” An Anoka County District Court Judge
issued a warrant to search “the described premises and vehicle” for a lengthy list of
identified types of property.
Lund testified he planned to execute the warrant on November 15, explaining
the delay was due to the need to approach members of the drug trafficking ring with
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota, adopting the Report and Recommendation of the Honorable
Hildy Bowbeer, United States Magistrate Judge for the District of Minnesota.
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“extreme caution.” Lund learned that a GPS device had been put on the vehicle of
Johnson’s suspected source of narcotics. A drive-by revealed the vehicle parked at
the Palm Street address. On November 14, that vehicle was tracked traveling to a
truck stop and returning. Lund believed the vehicle had picked up a load of
methamphetamine and decided to stop it when it left Hill’s residence. The vehicle
was stopped and a canine unit was called when the driver admitted “he had a lot of
dope.” Hill, driving a white Plymouth Acclaim, stopped and asked to have the
vehicle returned to him, then followed the vehicle to the lot where it was impounded.
Lund, concerned evidence was being removed from the house, moved execution of
the warrant to November 14. Later that day, Hill returned to the house and parked a
white pickup truck facing the street. A maroon vehicle registered to Johnson parked
at the residence. The driver soon exited the house carrying bags or packages, and the
maroon vehicle and Hill’s Acclaim left at the same time. Police followed. When Hill
took evasive maneuvers, the maroon vehicle was stopped, and methamphetamine,
cocaine, marijuana, and firearms were seized. Police then executed the warrant,
searching the house, the large RV named in the warrant, and the white pickup parked
in the driveway facing the street. They found indicia of drug trafficking and several
guns in the house and a cell phone and two digital scales with drug residue in the
white pickup.
On appeal, Hill first argues the warrantless search of his white pickup was
invalid because the truck was not named in the search warrant, and police lacked
independent probable cause that there was contraband in the truck so the “automobile
exception” to the Fourth Amendment’s warrant requirement did not apply.
First, we agree with the district court that Hill failed to preserve this issue when
he did not identify the seized items he wanted suppressed, as District of Minnesota
Local Rule 12.1(c)(1)(B) requires. Prior to 2014 amendments to Rule 12 of the
Federal Rules of Criminal Procedure, we held that failure to raise an issue in a pretrial
motion to suppress was a waiver under Rule 12(e) that precluded appellate review.
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See United States v. Green, 691 F.3d 960, 963-64 (8th Cir. 2012). The 2014
amendments dropped the explicit reference to “waiver” and relocated Rule 12(e) in
a new paragraph 12(c)(3). The Rule now provides that, when a pretrial motion is
untimely, a court “may consider the defense, objection, or request if the party shows
good cause.” Here, Hill’s failure to identify this issue in his motion to suppress was
noted in the magistrate judge’s Report and Recommendation, yet Hill made no
showing of good cause excusing the untimeliness in his objections to the district court
or in arguing the issue on appeal. In United States v. Bernhardt, 903 F.3d 818, 824
(8th Cir. 2018), we noted: “Although there is authority suggesting that the absence
of good cause forecloses the point altogether, we will assume for the sake of analysis
that plain-error review is available.” Making the same assumption in this case, Hill’s
omission was significant, the government argues, because evidence seized in the
white pickup was slight and cumulative, and the government might have elected not
to offer it had the issue been timely raised. In these circumstances, granting a new
trial on plain error review would require a high showing of prejudicial constitutional
error.
Second, we conclude that there was no error. In United States v. Coleman, 909
F.3d 925 (8th Cir. 2018), the defendant made the same argument after police
executing a warrant to search his premises also searched his vehicle parked in the
driveway. Distinguishing Collins v. Virginia, 138 S. Ct. 1663, 1669-71 (2018), we
rejected the argument. “We conclude that the warrant to search ‘the premises and
curtilage area’ permitted the officers either to search a vehicle parked in the curtilage,
or, more prudently, to have a drug dog sniff the vehicle’s exterior to confirm there
was probable cause to search the vehicle for contraband named in the warrant.” 909
F.3d at 932. Hill argues this was dicta because police called for a drug dog in
Coleman. It was not dicta. In addition, Hill’s assertion that this was a warrantless
search of his truck because the RV was the only vehicle named in the warrant is
without merit. “[A] vehicle found on a premises (except, for example, the vehicle of
a guest or other caller) is considered to be included within the scope of a warrant
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authorizing a search of that premises.” United States v. Pennington, 287 F.3d 739,
745 (8th Cir.) (cleaned up), cert. denied, 537 U.S. 1022 (2002). Thus, we need not
consider whether the district court erred in concluding the automobile exception
applied because the officers had probable cause to search the vehicle.
Hill further argues the information provided by the CD was not sufficiently
reliable to provide probable cause to issue the warrant. Like the district court, we
disagree. The CD was known; he provided first-hand information against his criminal
interest in a face-to-face interview with Agent Lund, including identifying Johnson
and Hill from unlabeled photos; and much of the information was corroborated by the
extensive on-going investigations. The information was sufficiently reliable to
support the presumptively valid warrant. See, e.g., United States v. Williams, 10 F.3d
590, 593-94 (8th Cir. 1993).
II. The Sentencing Issue.
Prior to sentencing, both parties submitted detailed sentencing memoranda
discussing their respective objections to the Presentence Investigation Report’s
determination of the advisory guidelines sentencing range, 360 months to life
imprisonment. At the hearing, the court adopted the PSR range. The government
urged a sentence at the bottom of the range, 360 months. Hill urged a mandatory
minimum sentence of 120 months, noting that three cooperating conspirators had
received sentences substantially less than 360 months. The court, applying the
sentencing factors in 18 U.S.C. § 3553(a), imposed concurrent 204-month sentences
of each count, noting that “I’ve looked at each of the codefendants.”
On appeal, Hill argues the district court abused its discretion and imposed a
substantively unreasonable sentence because 204 months imprisonment is greater
than necessary to accomplish the § 3553(a) goals and creates an unwarranted
sentencing disparity with (i) four similarly situated co-defendants, who received
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significantly lower sentences, including two who were also subject to the 120-month
mandatory minimum; and (ii) the nationwide average sentence imposed on those
convicted of methamphetamine offenses in fiscal year 2019, 95 months. Hill argues
that our refusal “to consider the particular sentencing proclivities of specific judges”
is contrary to the mandate of 18 U.S.C. § 3553(a)(6).2
We have consistently rejected these arguments. As the sentencing records of
Hill’s co-defendants are not before us, we are not in a position to evaluate his claim
of unwarranted disparities. See United States v. Maxwell, 778 F.3d 719, 736 (8th
Cir.), cert. denied, 135 S. Ct. 2827 (2015). In these circumstances, “[w]hen a single
defendant asserts on appeal that a similarly situated co-conspirator was sentenced
differently, and both sentences are within the range of reasonableness, there is no
principled basis for an appellate court to say which defendant received the
‘appropriate’ sentence.” United States v. Fry, 792 F.3d 884, 893 (8th Cir. 2015).
Here, as in Fry, the comparators proffered by Hill were not similarly situated because
they pleaded guilty, accepted responsibility, and cooperated with the government,
“earning leniency that justified differential treatment.” Id. Likewise, Hill’s reliance
on national statistics of sentences imposed by different judges provides an appellate
court “no principled basis . . . to say which defendants received the appropriate
sentence.” United States v. McElderry, 875 F.3d 863, 865 (8th Cir. 2017), cert.
denied, 138 S. Ct. 2003 (2018).
The district court expressly considered the sentences imposed on other
conspirators, noted significant ways in which Hill was not similarly situated for
sentencing purposes, and granted a substantial downward variance from the advisory
2
Hill’s reply brief also argues that imposing a harsher sentence than the
sentences of more culpable co-defendants violated his due process rights. We do not
consider arguments made for the first time in a reply brief.
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guidelines range. As in United States v. Baez, 983 F.3d 1029, 1044 (8th Cir. 2020),
cert. denied, 2021 WL 2302094 (Jun. 7, 2021), there was no abuse of discretion.
The judgment of the district court is affirmed.
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