United States v. Rodriquez ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-30397
v.  D.C. No.
GINO GONZAGA RODRIQUEZ, CR-03-00142-RHW
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 04-30494
Plaintiff-Appellant,
v.  D.C. No.
CR-03-00142-RHW
GINO GONZAGA RODRIQUEZ,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, District Judge, Presiding
Argued and Submitted
January 23, 2006—Seattle, Washington
Filed October 5, 2006
Before: Johnnie B. Rawlinson and Richard R. Clifton,
Circuit Judges, and Consuelo B. Marshall,*
Senior District Judge.
Opinion by Judge Rawlinson
*The Honorable Consuelo B. Marshall, Senior United States District
Judge for the Central District of California, sitting by designation.
17293
UNITED STATES v. RODRIQUEZ 17297
COUNSEL
Lana C. Glenn, Spokane, Washington, for appellant/cross-
appellee Gino Gonzaga Rodriquez.
Joseph H. Harrington, Assistant United States Attorney, Spo-
kane, Washington, for appellee/cross-appellant United States.
OPINION
RAWLINSON, Circuit Judge:
A jury convicted Gino Rodriquez of being a felon in pos-
session of a firearm. On appeal, he argues that the district
court erred in denying his motion to suppress the firearm
because consent to search was not voluntary. He also con-
tends that there was insufficient evidence to support his con-
viction. On cross-appeal, the government maintains that the
district court erroneously concluded that Rodriquez’s prior
drug convictions do not qualify as predicate offenses under
the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(1). We conclude that the search was conducted pur-
suant to a valid consent; there was sufficient evidence to sup-
port the jury’s finding that Rodriquez possessed the firearm;
and the district court — relying on United States v. Corona-
Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) — correctly
held that Rodriquez’s prior drug convictions do not qualify as
predicate offenses under the ACCA. We therefore affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Gino Rodriquez has several felony convictions in Washing-
ton State, including three convictions for delivery of a con-
17298 UNITED STATES v. RODRIQUEZ
trolled substance. Rodriquez served his time and, upon his
release, was placed on a term of community supervision, from
which he absconded. He was subsequently placed on “escape
status,” and four warrants were issued for his arrest. His
whereabouts were unknown until April 2003, when law
enforcement officers located and arrested him.
Rodriquez was staying with Tammi Putnam in apartment
36 of an apartment complex in Spokane, Washington.
Rodriquez had a key to the apartment, had access to the entire
apartment, had his belongings there, and received mail there.
Rodriquez and Tammi resided with Tammi’s daughter and
teenaged son, Zachary.
In March 2003, Zachary’s friend, William Packer, spoke to
Rodriquez about “getting rid” of a gun. Rodriquez told Packer
that he could “get rid” of it. Packer brought the gun to the
apartment for Rodriquez. Rodriquez looked at the gun,
grabbed it with his shirt, pulled the gun out of the sleeve and
replaced it. Rodriquez kept the gun, telling Packer that he
would try to sell it. Zachary later observed Rodriquez in the
apartment with the gun on a table. When Zachary asked about
the gun, Rodriquez stated that he was “getting rid of it.”
Meanwhile, a joint fugitive task force was looking for
Rodriquez and conducting surveillance of Deanna Torgeson,
whom the task force had learned was visiting Rodriquez on a
regular basis. In April 2003, task force officers followed Tor-
geson to the apartment complex where Rodriquez resided.
They observed Torgeson talking to Rodriquez right outside
the rear, open door of apartment 36, while Rodriquez was eat-
ing a bowl of cereal.
Spokane County Sheriff Deputy Kris Thompson arrested
Rodriquez pursuant to four outstanding warrants for his arrest.
Deputy Thompson found a bag of heroin and approximately
$900 dollars in cash when Rodriquez was searched. After
Deputy Thompson administered the Miranda warnings, which
UNITED STATES v. RODRIQUEZ 17299
Rodriquez waived, Rodriquez denied living in apartment 36.
Rodriquez also made other statements that, according to Dep-
uty Thompson, “didn’t quite match up,” including conflicting
stories about how he arrived at the apartment.
At this point, Tammi arrived on the scene. When Deputy
Thompson asked her whether she lived in apartment 36 and
whether she knew Rodriquez or Torgeson, she responded that
she did not live in that apartment, she did not know Rodriquez
or Torgeson, and she was at the complex to pick up her child.
She then entered apartment 35.
After conversing with the resident of apartment 35, Deputy
Thompson discovered that Tammi had not been forthright. He
confronted Tammi with her earlier statements, which she con-
fessed were false. He advised her that “it was a criminal
offense to make a false or misleading statement to a public
servant.” During the course of their conversation, she seemed
“nervous” and “upset.” Deputy Thompson explained that
Rodriquez had been arrested and told Tammi that a warrant
could be obtained to search the apartment, in which case the
apartment would be secured to ensure the integrity of its con-
tents. Alternatively, she could consent to a search. Deputy
Thompson informed Tammi that she had the right to refuse to
consent and read to her a search consent card, which she
reviewed, signed, and dated. Upon receiving her consent, the
officers searched the apartment, where they discovered the
gun underneath a couch.
Rodriquez was charged with being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). He moved to
suppress evidence seized during the search, asserting that
Tammi’s consent was not voluntary. The district court denied
the motion, and Rodriquez was convicted by a jury.
Rodriquez also objected to the government’s request that
the judge enhance his sentence under the ACCA. He con-
tended that his two prior burglary convictions and three prior
17300 UNITED STATES v. RODRIQUEZ
drug convictions did not qualify as predicate offenses under
the ACCA. The district court concluded that Rodriquez’s
prior burglary convictions qualified as two predicate offenses;
however, relying on Corona-Sanchez, the district court held
that the ACCA enhancement did not apply because
Rodriquez’s prior drug convictions did not qualify as predi-
cate offenses. This timely appeal and cross-appeal followed.
II
DISCUSSION
A. The Motion to Suppress Was Properly Denied
Because Tammi Putnam Voluntarily Consented to
the Search of Apartment 36
“We review de novo the district court’s denial of a suppres-
sion motion. The district court’s underlying factual finding
that a person voluntarily consented to a search is reviewed for
clear error.” United States v. Pang, 362 F.3d 1187, 1191 (9th
Cir. 2004) (citations omitted).
[1] “It is well settled that a search conducted pursuant to a
valid consent is constitutionally permissible.” United States v.
Soriano, 361 F.3d 494, 501 (9th Cir. 2004) (citation and inter-
nal quotation marks omitted). “Whether consent to search was
voluntarily given is to be determined from the totality of all
the circumstances. It is the government’s burden to prove that
the consent was freely and voluntarily given. On appeal, evi-
dence regarding the question of consent must be viewed in the
light most favorable to the fact-finder’s decision.” Id. (cita-
tions and internal quotation marks omitted).
[2] “Our cases have identified five factors to be considered
in determining the voluntariness of consent to a search. They
are: (1) whether defendant was in custody; (2) whether the
arresting officers had their guns drawn; (3) whether Miranda
warnings were given; (4) whether the defendant was notified
UNITED STATES v. RODRIQUEZ 17301
that she had a right not to consent; and (5) whether the defen-
dant had been told a search warrant could be obtained.” Id. at
502 (citations and internal quotation marks omitted). “No one
factor is determinative in the equation. It is not necessary to
check off all five factors, but many of this court’s decisions
upholding consent as voluntary are supported by at least sev-
eral of the factors. Nevertheless, these factors are only guide-
posts, not a mechanized formula to resolve the voluntariness
inquiry.” Id. (citations and internal quotation marks omitted).
[3] Based on the totality of the circumstances and after con-
sidering the applicable factors, we conclude that Tammi vol-
untarily consented to the search. As to the first factor, the
district court concluded, and Rodriquez conceded in his brief,
that Tammi was not in custody when she consented to the
search. Second, the court determined that there was no “indi-
cation that firearms were exhibited or drawn,” a conclusion
with which Rodriquez also agreed. Third, because Tammi was
not in custody, “Miranda warnings were inapposite . . .” Id.
at 504 (citation omitted). Fourth, the court found, and
Rodriquez acknowledged, that Tammi knew she had the right
to refuse consent. “Knowledge of the right to refuse consent
is highly relevant in determining whether a consent is valid.”
Id. (alteration and citations omitted). Moreover, where, as
here, “the officers themselves informed [Tammi] that she was
free to withhold her consent,” “the probability that their con-
duct could reasonably have appeared to her to be coercive” is
“substantially lessened.” United States v. Mendenhall, 446
U.S. 544, 559 (1980) (emphasis added).
[4] Fifth, Deputy Thompson told Tammi that, if she chose
not to consent, he could apply for a search warrant and secure
her apartment. A “statement indicating that a search warrant
would likely be sought and the [apartment] secured could not
have, by itself, rendered [Tammi’s] consent involuntary as a
matter of law.” United States v. Whitworth, 856 F.2d 1268,
1279 (9th Cir. 1988) (citations omitted). Rather, application
of this factor “hinges on whether [Tammi was] informed
17302 UNITED STATES v. RODRIQUEZ
about the possibility of a search warrant in a threatening man-
ner.” Soriano, 361 F.3d at 504 (citations omitted). “Even
assuming, however, that [Deputy Thompson’s statements]
were made in a threatening manner so as to imply the futility
of withholding consent, when probable cause to justify a war-
rant exists, the weight of the fifth factor is significantly dimin-
ished.” Id. at 504-05 (citations omitted).
[5] Probable cause to justify a warrant existed in this case.
“Probable cause exists when there is a fair probability or sub-
stantial chance of criminal activity. It is well-settled that the
determination of probable cause is based upon the totality of
the circumstances known to the officers at the time of the
search.” Id. at 505 (citations and internal quotation marks
omitted).
[6] Prior to the search, the officers knew the following:
Rodriquez had absconded from his supervision, and there
were four outstanding warrants for his arrest; he was found
standing right outside an open door to an apartment eating a
bowl of cereal; he denied residing at the apartment, but two
people independently confirmed that he resided there; he pro-
vided an implausible explanation for how he arrived at the
apartment; he attempted to distance himself from the apart-
ment; and he was in possession of “a considerable size chunk
of heroin” and approximately $900 dollars in cash. This col-
lection of facts implies a fair probability of criminal activity
resulting in probable cause, thereby significantly diminishing
the weight of the fifth factor. See id.
The voluntary consent analysis does not automatically end
here, however, because the five factors articulated in Soriano
are not exhaustive. Id. at 502. In addition to the five factors,
“execution of a consent form is one factor that indicates that
consent was voluntary.” United States v. Childs, 944 F.2d
491, 496 (9th Cir. 1991) (alteration and citation omitted). In
this case, Tammi executed a consent form, reinforcing the
conclusion that she voluntarily consented.
UNITED STATES v. RODRIQUEZ 17303
[7] In sum, the totality of the circumstances in this case
leads us to conclude that the district court’s finding that
Tammi voluntarily consented to the search was not clearly
erroneous. We therefore affirm the district court’s denial of
Rodriquez’s motion to suppress.
B. There Was Sufficient Evidence to Support the
Jury’s Finding that Rodriquez Possessed the
Firearm
“When reviewing convictions for sufficiency of the evi-
dence, we must determine whether, after viewing the evidence
in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Sanders,
421 F.3d 1044, 1049 (9th Cir. 2005) (emphasis in the origi-
nal) (citation and internal quotation marks omitted).
The evidence in the record reflects that Packer asked
Rodriquez whether Rodriquez could “get rid” of the gun for
him. Rodriquez responded that he could. Packer brought the
gun to Rodriquez, who looked at the gun and handled it. After
telling Packer that he would try to sell it, Rodriquez kept the
gun. Zachary later observed Rodriquez in the apartment with
the gun on a table. When Zachary asked about the gun,
Rodriquez stated that “he was getting rid of it.”
[8] The evidence also supports a reasonable inference that
Rodriquez resided in the apartment in which the gun was dis-
covered: officers observed Rodriquez standing outside an
open door to the apartment eating a bowl of cereal; although
he denied residing in the apartment, two people independently
confirmed that he resided there; he had a key to the apart-
ment; he had access to the entire apartment; he had belong-
ings in the apartment; and officers found mail sent to
Rodriquez at the apartment’s address.1
1
The fact that the gun was located under the couch “where numerous
individuals had access and control” does not establish that Rodriquez did
17304 UNITED STATES v. RODRIQUEZ
[9] We conclude that the evidence at trial, viewed in the
light most favorable to the prosecution, could lead a rational
trier of fact to find beyond a reasonable doubt that Rodriquez
possessed the firearm. See United States v. Garcia-Cruz, 978
F.2d 537, 542 (9th Cir. 1992) (holding that the defendant’s
sole admission that he had “the gun dropped off to [him] to
pick up” was sufficient evidence of possession).
C. Corona-Sanchez Forecloses Use of Rodriquez’s
Prior Drug Convictions as Predicate Offenses
Under the ACCA
We review de novo whether a prior conviction “may be
used for purposes of enhancement under the ACCA . . .”
United States v. Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998).
[10] Under the ACCA, a person who violates 18 U.S.C.
§ 922(g) and has three prior convictions for a “violent felony”
or a “serious drug offense” is subject to a mandatory mini-
mum sentence of fifteen years. 18 U.S.C. § 924(e)(1). One
definition of a serious drug offense is “an offense under State
law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . .
for which a maximum term of imprisonment of ten years or
more is prescribed by law . . .” 18 U.S.C. § 924(e)(2)(A)(ii)
(emphasis added).
Rodriquez was previously convicted of three drug offenses
in violation of Washington Revised Code § 69.50.401, the
maximum penalty for which is five years’ imprisonment.
not have possession of it; the evidence still reasonably supports the infer-
ence that he did. Rodriquez provided an implausible explanation for how
he arrived at the apartment, denied living in the apartment, and stated that
“he didn’t have any belongings in apartment #36,” all of which could lead
a rational trier of fact to conclude beyond a reasonable doubt that he was
attempting to distance himself from the apartment because he was aware
that he had put the gun under the couch.
UNITED STATES v. RODRIQUEZ 17305
Wash. Rev. Code § 9A.20.021(1)(c). However, if a person is
convicted of “a second or subsequent offense,” the maximum
penalty is ten years. Wash. Rev. Code § 69.50.408(1). The
question, then, is whether the district court should consider
the maximum penalty as provided in the five-year statute of
conviction (which would not trigger the ACCA enhance-
ment), or consider the maximum ten-year penalty resulting
from the recidivism provision (which would trigger the
ACCA enhancement).2 The district court correctly applied our
decision in Corona-Sanchez, concluding that it could consider
only the five-year maximum penalty provided in the statute of
conviction.
In Corona-Sanchez, we considered a similar issue: whether
a defendant’s prior conviction for petty theft under California
Penal Code § 484(a) qualified as an “aggravated felony.” 291
F.3d at 1208. To qualify as an aggravated felony, the term of
imprisonment for the theft offense had to be at least one year.
Id. On the face of California Penal Code § 484(a), the maxi-
mum possible sentence was six months. Id. However, the
defendant “actually received a two year sentence . . . due to
the application of California Penal Code § 666, which pro-
vides a sentence enhancement for recidivists.” Id.
[11] In deciding Corona-Sanchez, we followed the “famil-
iar analytical model constructed by the Supreme Court in Tay-
lor v. United States, 495 U.S. 575, [600] (1990).” Id. at 1203.
For federal sentencing enhancement purposes, when we con-
sider the prison term imposed for a prior offense, “we must
consider the sentence available for the crime itself, without
considering separate recidivist sentencing enhancements.”3 Id.
2
Neither party challenges the district court’s determination that
Rodriquez’s two prior burglary convictions qualify as two predicate
offenses under the ACCA. The only issue is whether Rodriquez’s prior
drug convictions qualify as predicate offenses.
3
In general, federal courts apply this categorical approach to decide
whether a defendant’s prior conviction qualifies as a particular type of
17306 UNITED STATES v. RODRIQUEZ
at 1209 (reiterating that the court must examine the crime
itself, “rather than any sentencing enhancements”); see also
United States v. Moreno-Hernandez, 419 F.3d 906, 910 (9th
Cir. 2005) (stating that, in Corona-Sanchez, the court held
that “the substantive offense is to be considered independently
of any recidivist sentencing enhancement.”), cert. denied, 126
S. Ct. 636 (2005). We observed that this conclusion “is con-
sistent with the Supreme Court’s historic separation of recidi-
vism and substantive crimes. As the Court bluntly put it,
‘recidivism does not relate to the commission of the
offense.’ ” Corona-Sanchez, 291 F.3d at 1209 (citations omit-
ted).
[12] The rationale articulated in Corona-Sanchez applies
equally in this case,4 dictating the conclusion that the district
court could consider only the maximum penalty as provided
in the five-year statute of conviction, and not the maximum
ten-year penalty resulting from the recidivism provision.
The government attempts to distinguish Corona-Sanchez
on several bases, none of which are persuasive. The govern-
ment first posits that, unlike Corona-Sanchez, where the petty
theft statute (Cal. Penal Code § 484) and the recidivism provi-
sion (Cal. Penal Code § 666) were “wholly separate,” the stat-
predicate offense (e.g., an “aggravated felony” or a “serious drug
offense”), which, in turn, determines whether the defendant will receive
an enhanced sentence. To decide whether a prior conviction counts as a
particular type of predicate offense under the categorical approach, “fed-
eral courts do not examine the facts underlying the prior offense, but look
only to the fact of conviction and the statutory definition of the prior
offense.” Corona-Sanchez, 291 F.3d at 1203 (emphasis added) (citation
and internal quotation marks omitted). In Corona-Sanchez, we concluded
that the categorical approach required us to “separate the recidivist
enhancement from the underlying offense” and “consider the sentence
available for the crime itself . . .” Id. at 1209-10.
4
“We apply the categorical approach in a variety of sentencing con-
texts.” United States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006) (cita-
tion and internal quotation marks omitted).
UNITED STATES v. RODRIQUEZ 17307
utes in this case “are both in the same article . . . and are
codified in fairly close proximity . . .” However, this distinc-
tion is not convincing because, in Corona-Sanchez, we con-
cluded that “we must separate the recidivist enhancement
from the underlying offense.” Corona-Sanchez, 291 F.3d at
1210. We “must consider the sentence available for the crime
itself, without considering separate recidivist sentencing
enhancements.” Id. at 1209. We observed that our conclusion
is consistent with, and based on, the Supreme Court’s historic
separation of substantive crimes and recidivism, pertinent leg-
islative history, and our own cases distinguishing between
substantive offenses and recidivist sentencing enhancement
statutes. Id. This rationale applies regardless of where the
recidivist provision is located in the statutory framework. Cf.
United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th
Cir. 2002) (relying on Corona-Sanchez to disregard a sentenc-
ing enhancement located in the same section as the substan-
tive offense).5
The government next argues that, in Corona-Sanchez, the
issue was whether the defendant’s prior conviction was for a
“theft offense . . . for which the term of imprisonment is at
least one year.” Corona-Sanchez, 291 F.3d at 1204 (alteration,
citation, and footnote reference omitted). The “theft offense”
language, the government continues, suggests that Congress
sought to include “only the punishment imposed for the theft
offense itself.” In contrast, according to the government, the
issue in this case is whether Rodriquez’s prior drug convic-
tions were for “an offense . . . involving manufacturing, dis-
tributing, or possessing with intent to manufacture or
distribute, a controlled substance . . .” 18 U.S.C.
§ 924(e)(2)(A)(ii) (emphasis added). The government con-
tends that the language defining drug offenses is “more
expansive and encompasses recidivist offenses . . .”
5
The government concedes that “the logic of Corona-Sanchez does not
appear to be confined to separately codified sentencing schemes . . .”
17308 UNITED STATES v. RODRIQUEZ
The government’s reliance on the “theft offense” character-
ization is misplaced, however, because Corona-Sanchez did
not rely on or attach any particular significance to that term.
Rather, Corona-Sanchez focused on the term of imprisonment
for the theft offense in determining whether a conviction for
theft qualified as an aggravated felony. See 291 F.3d at 1208.
By urging us to conclude that the term “involving” is so
broad as to “encompass[ ] recidivist offenses,” the govern-
ment is, in effect, contending that the drug offenses should be
interpreted as subsuming corollary recidivism enhancements.
That interpretation would effectively render “offense” and
“sentencing enhancements” coterminous, a result that is fore-
closed by Supreme Court precedent. See Apprendi v. New Jer-
sey, 530 U.S. 466, 488, 496 (2000) (“[R]ecidivism does not
relate to the commission of the offense.”) (internal quotation
marks omitted); see also Rusz v. Ashcroft, 376 F.3d 1182,
1185 (9th Cir. 2004) (“[S]entence enhancements . . . do not
describe substantive criminal offenses . . .”) (internal quota-
tion marks omitted) (citing Corona-Sanchez, 291 F.3d at
1211); Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir.
2002) (per curiam) (holding that California Vehicle Code
§ 23175 [now § 23550, which provides an enhanced penalty
for successive convictions for driving under the influence of
alcohol,] “is an enhancement statute; it does not alter the ele-
ments of the underlying offense.”) (citation omitted).
Finally, the government postulates that Corona-Sanchez
applies only where the underlying offense is a misdemeanor
and applying the recidivism provision would transform the
misdemeanor into a felony. Because Rodriquez’s prior drug
offenses are already felonies, the government maintains,
Corona-Sanchez does not apply, and the district court should
have considered the maximum penalty applying the recidi-
vism provision.
We disagree. Corona-Sanchez applies irrespective of the
nature of the underlying crime of which a defendant is con-
UNITED STATES v. RODRIQUEZ 17309
victed. In Corona-Sanchez, we held that “a crime may be
classified as an ‘aggravated felony’ . . . without regard to
whether, under state law, the crime is labeled a felony or a
misdemeanor.” 291 F.3d at 1210 (emphasis in the original).
In so holding, we agreed with our sister circuits that “it is
irrelevant whether the state labels the underlying crime ‘mis-
demeanor’ or ‘felony’ . . . . The relevant question is whether
the crime meets the definition of an ‘aggravated felony’ under
federal sentencing law.” Id. (citation and footnote reference
omitted).
Likewise, Rodriquez’s three convictions for delivery of a
controlled substance may be classified as “serious drug
offenses” “without regard to whether, under state law, the
crime is labeled a felony or a misdemeanor.” Id. As articu-
lated in Corona-Sanchez, “it is irrelevant” whether
Rodriquez’s underlying crimes are misdemeanors or felonies;
the relevant question is whether his prior drug offenses meet
the definition of a “serious drug offense.” Id. Under Corona-
Sanchez, whether application of a recidivism enhancement
would transform a misdemeanor into a felony is simply of no
import.
However the government frames its argument, the essence
of its request is that we consider the offense and the sentenc-
ing enhancement together. But that is precisely what is forbid-
den by Corona-Sanchez and its progeny. See Moreno-
Hernandez, 419 F.3d at 911 (“Corona-Sanchez explained the
cleaving of the recidivist enhancement from the underlying
offense largely on the basis that the enhancement was mea-
sured by recidivism. Following the Supreme Court’s reitera-
tion . . . that ‘recidivism does not relate to the commission of
the offense,’ the en banc court regarded petty theft as a single,
substantive offense, as to which various sentencing alterna-
tives were available depending on the defendant’s past crimi-
nal history.”) (citations and emphasis omitted).
17310 UNITED STATES v. RODRIQUEZ
[13] In sum, the government’s distinctions cannot over-
come the language in, or the rationale of, Corona-Sanchez.
Based on Corona-Sanchez, the district court properly con-
cluded that it could consider only the five-year maximum
penalty provided in the statute of conviction. Because
Rodriquez’s prior drug convictions do not qualify as predicate
offenses under the ACCA, the district court correctly declined
to apply that enhancement.6
III
CONCLUSION
Because Tammi Putnam voluntarily consented to the search
of apartment 36, the motion to suppress the firearm was prop-
erly denied. There was sufficient evidence presented during
trial to enable a rational jury to conclude beyond a reasonable
doubt that Rodriquez possessed the firearm. Corona-Sanchez
applies in this ACCA case, dictating the conclusion that
Rodriquez’s prior drug convictions do not qualify as predicate
offenses under the ACCA.
AFFIRMED.
6
We recognize that this conclusion is in conflict with the Seventh Cir-
cuit’s decision in United States v. Henton, 374 F.3d 467, 469-70 (7th Cir.
2004), cert. denied, 543 U.S. 967 (2004), and in tension with the Fifth Cir-
cuit’s decision in Mutascu v. Gonzales, 444 F.3d 710, 712 (5th Cir. 2006)
(per curiam), and the Fourth Circuit’s decision in United States v. Wil-
liams, 326 F.3d 535, 539 (4th Cir. 2003). Nevertheless, Corona-Sanchez
is binding Ninth Circuit precedent and dictates the conclusion we reach.