United States v. Marcos Gonzalez Flores ( 2020 )

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 17-50269
Plaintiff-Appellant, D.C. No. 5:16-cr-00146-R-1
Central District of California,
v. Riverside
MARCOS ALEJANDRO GONZALEZ ORDER
FLORES,
Defendant-Appellee.
UNITED STATES OF AMERICA, No. 17-50270
Plaintiff-Appellee, D.C. No. 5:16-cr-00146-R-1
v.
MARCOS ALEJANDRO GONZALEZ
FLORES,
Defendant-Appellant.
Before: O'SCANNLAIN, PAEZ, and OWENS, Circuit Judges.
The memorandum disposition filed on January 9, 2020 is amended as
follows:
On page 4, delete:
Accordingly, we affirm the denial of the motion to suppress.
On page 4, add:
4. We reject Gonzalez’s argument that the district court abused its
discretion by ruling on Gonzalez’s motion to suppress without holding
an evidentiary hearing. “An evidentiary hearing on a motion to
suppress need be held only when the moving papers allege facts with
sufficient definiteness, clarity, and specificity to enable the trial court
to conclude that contested issues of fact exist.” United States v.
Howell, 231 F.3d 615, 620 (9th Cir. 2000). Gonzalez’s motion did
not meet that standard.
The amended memorandum is filed concurrently with this order.
The petition for rehearing (Dkt. 72) is denied. No further petitions for
rehearing may be filed.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50269
Plaintiff-Appellant, D.C. No. 5:16-cr-00146-R-1
v. AMENDED
MEMORANDUM*
MARCOS ALEJANDRO GONZALEZ
FLORES,
Defendant-Appellee.
UNITED STATES OF AMERICA, No. 17-50270
Plaintiff-Appellee, D.C. No. 5:16-cr-00146-R-1
v.
MARCOS ALEJANDRO GONZALEZ
FLORES,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 10, 2019
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: O’SCANNLAIN, PAEZ, and OWENS, Circuit Judges.
The government appeals the district court’s imposition of a sentence below
the mandatory minimum. Marcos Alejandro Gonzalez Flores (“Gonzalez”) cross-
appeals the district court’s denial of his suppression motion. We have jurisdiction
under 28 U.S.C. § 1291. “We review de novo the legality of a criminal
sentence . . . .” United States v. Moreno-Hernandez, 48 F.3d 1112, 1114 (9th Cir.
1995). We also review de novo the denial of a suppression motion and review for
clear error the factual findings underlying such a denial. United States v. Brobst,
558 F.3d 982, 991 (9th Cir. 2009). We vacate the sentence, affirm the denial of the
motion to suppress, and remand to the district court for resentencing.
1. As an initial matter, we reject Gonzalez’s challenge to the propriety of
the government’s appeal. First, the appellate waiver provision in the parties’ plea
agreement does not bar the appeal of an unlawful sentence. United States v.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (“An appeal waiver will not apply if . . .
the sentence violates the law.”). Second, we are satisfied the appeal was properly
authorized under 18 U.S.C. § 3742(b) by the Acting Solicitor General Jeffrey Wall.
See 5 U.S.C. §§ 3345(a)(1), 3346(a)(1); 28 C.F.R. § 0.137(b). Finally, the
government timely filed its notice of appeal on July 26, 2017; the government’s
filing of a second, identical notice of appeal on August 1, 2017, after the district
court’s clerk’s office requested the first notice be refiled under the correct “event”
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code, does not render the appeal untimely. Cf. United States v. Arevalo, 408 F.3d
1233, 1237−39 (9th Cir. 2005) (concluding an appeal was untimely where seven
months had elapsed between appellant’s voluntary dismissal of the appeal and his
attempt to reinstate it); Williams v. United States, 553 F.2d 420, 422 (5th Cir.
1977) (where ten months elapsed between the same).
2. As to the merits of the government’s appeal, the district court erred in
imposing a sentence that disregarded the mandatory consecutive penalty.
Gonzalez pleaded guilty to offenses that carry mandatory minimum sentences of
five years each, which must run consecutively. See 21 U.S.C. § 841(b)(1)(B)(vii);
18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D)(ii). The district court sentenced Gonzalez to
72- and 60-month terms to run concurrently. That was error. See United States v.
Sykes, 658 F.3d 1140, 1146 (9th Cir. 2011) (“It is axiomatic that a statutory
minimum sentence is mandatory.”). We vacate the unlawful sentence and remand
to the district court for resentencing.
3. Finally, we determine that the district court did not err in denying
Gonzalez’s motion to suppress evidence obtained during the search of his business.
Police obtained a warrant to search “Suite 114” of a multi-unit commercial
complex. While executing the warrant, they discovered a hidden three-by-three-
foot hole leading from Suite 114 into a second unit (not within the scope of the
warrant), which they erroneously believed was part of Suite 114. We conclude
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that, under the circumstances, it was “objectively understandable and reasonable”
for the officers to believe this second space was part of Suite 114 and thus to
search it. Maryland v. Garrison, 480 U.S. 79, 88 (1987).
4. We reject Gonzalez’s argument that the district court abused its discretion
by ruling on Gonzalez’s motion to suppress without holding an evidentiary
hearing. “An evidentiary hearing on a motion to suppress need be held only when
the moving papers allege facts with sufficient definiteness, clarity, and specificity
to enable the trial court to conclude that contested issues of fact exist.” United
States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Gonzalez’s motion did not
meet that standard.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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