United States v. Thomas Velasco ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10386
Plaintiff-Appellee, D.C. No. CR-18-0394-CKJ
District of Arizona
v.
MEMORANDUM*
THOMAS BRICE VELASCO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted March 1, 2021**
Phoenix, Arizona
Before: HAWKINS, BEA, and BUMATAY, Circuit Judges.
Before pleading guilty to one count of felon in possession of ammunition in
violation of 18 U.S.C. § 924, Thomas Velasco moved to suppress the ammunition
found in his parked truck during a warrantless search. The district court concluded
that Velasco lacked standing to challenge the search because he did not have a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concluded that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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reasonable expectation of privacy on his cousin’s property, where his truck was
parked. And even if he did, the district court held, the warrantless search was
justified under the emergency doctrine and the exigency exception. Velasco
challenges this order and his sentence of thirty-three months in prison. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. “Generally, the Fourth Amendment prohibits officers from entering and
searching a residence without first obtaining a warrant.” United States v. Stafford,
416 F.3d 1068, 1073 (9th Cir. 2005). But “[t]he emergency doctrine allows law
enforcement officers to enter and secure premises without a warrant when they are
responding to a perceived emergency.” Id. This exception is based on “[t]he need
to protect or preserve life or avoid serious injury.” United States v. Snipe, 515 F.3d
947, 950–51 (9th Cir. 2008) (quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978)).
We must decide “whether: (1) considering the totality of the circumstances, law
enforcement had an objectively reasonable basis for concluding that there was an
immediate need to protect others or themselves from serious harm; and (2) the
search’s scope and manner were reasonable to meet the need.” Id. at 952.
Assuming that Velasco has standing to challenge the search of his truck,1 the
1
Fourth Amendment standing “is analytically distinct from ‘case or
controversy’ standing in the Article III context.” United States v. Ewing, 638 F.3d
1226, 1230 (9th Cir. 2011). By contrast with standing under Article III, standing
under substantive Fourth Amendment law is not jurisdictional. See United States v.
Garcia-Villalba, 585 F.3d 1223, 1234 n.6 (9th Cir. 2009) (bypassing standing issue
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emergency doctrine justified the warrantless search. The officers had an objectively
reasonable basis to believe that there was an immediate need to protect themselves
and anyone else on the property. Although Velasco identified himself and appeared
to cooperate when the officers arrived at the scene, he denied possessing or firing a
firearm, which the officers had heard minutes earlier but had not located. “Even if
the situation were clear in hindsight [that there was no threat], . . . the police had
only a few minutes in which to determine whether a lurking predator or injured
person in need of assistance might be [on the property].” United States v. Russell,
436 F.3d 1086, 1090–93 (9th Cir. 2006) (affirming search because “there was
confusion” as to how many persons were involved in the incident, justifying a search
“to determine whether there were other injured persons”); see also United States v.
Black, 482 F.3d 1035, 1039–41 (9th Cir. 2007) (affirming search where police
detained suspect and used suspect’s key to enter residence and “ma[k]e a quick
sweep” because they could not locate the victim and reasonably “feared that [she]
could have been inside . . . and in need of medical attention”). The officer’s later
testimony—that he conducted the cursory sweep to “look[] for a gunshot victim”—
corroborates their motivation at the time.
and proceeding to the merits of the challenged search). We decline to reach the issue
of whether Velasco has standing to challenge the search of his truck, which was
parked on his cousin’s property. We also decline to reach the issue of whether the
area of the property on which the truck was parked constituted part of the residence’s
curtilage such that Fourth Amendment protections applied.
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The manner and scope of the search was also objectively reasonable. The
officers heard the gunshot outside and detained Velasco outside; correspondingly,
the officers confined their cursory sweep to outside. The officers did not enter the
house or any of the other structures on the property. Rather, one officer quickly
followed the dirt driveway that circled behind the house and glanced with his
flashlight at the backyard “at a distance.” He proceeded directly towards the smokey
grey Dodge truck that he had heard about from police dispatch and that Velasco had
emerged from when the officers arrived. The entire sweep took only minutes.
Officers properly seized the ammunition that was in plain view during the course of
this justified limited sweep.2
2. Under § 3E1.1(a) of the Sentencing Guidelines, a defendant is entitled
to a two-level reduction in offense level if he “clearly demonstrates acceptance of
responsibility.” U.S.S.G. § 3E1.1(a). Under § 3E1.1(b), the defendant is eligible
for an additional one-level reduction if the government files a motion “stating that
the defendant has assisted authorities . . . by timely notifying authorities of his
intention to enter a plea of guilty, thereby permitting the government to avoid
preparing for trial.” U.S.S.G. § 3E1.1(b).
Here, the Government declined to move for the additional one-level reduction
2
Because we find that the search was justified under the emergency doctrine,
we need not reach the issue of whether it was justified under the exigency exception.
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under § 3E1.1(b). By the time Velasco pleaded guilty, the Government had
completed a follow-up investigation, at Velasco’s request; performed Henthorn
checks on nine possible trial witnesses; and filed pretrial motions, which included a
notice of intent to call an expert witness and notice of intent to introduce Velasco’s
statements at trial. This preparation was reasonable as Velasco had rejected two plea
offers and confirmed his intention to proceed to trial. Velasco had also moved to
continue the trial date seven times. Because the Government’s rationale for
declining to move for the one-level reduction under § 3E1.1(b) is supported by the
record, the district court did not err in overruling Velasco’s objection. See United
States v. Kubick, 205 F.3d 1117, 1126 (9th Cir. 1999) (affirming district court’s
denial of § 3E1.1(b) reduction because the defendant’s plea did not “occur
particularly early in the case” (quoting U.S.S.G. § 3E1.1, Application Note 6)).
3. The presentence report calculated Velasco’s base offense level at 20
(rather than 14) on the grounds that his prior conviction for Attempted Possession of
a Narcotic Drug for Sale constituted a “controlled substance offense” under §
2K2.1(a)(4)’s recidivist enhancement. The Sentencing Guidelines define
“controlled substance offense” as follows:
an offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that prohibits the manufacture, import,
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.
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U.S.S.G. § 4B1.2(b). Although the definition is silent on whether “controlled
substance offense” includes inchoate offenses, such as Velasco’s conviction for
attempted possession, Application Note 1 states that it indeed “include[s] the
offenses of aiding and abetting, conspiring, and attempting to commit such
offenses.” U.S.S.G. § 4B1.2(b), Application Note 1.
In United States v. Crum, we considered whether a prior conviction for
“delivery of methamphetamine” constituted a “controlled substance offense” under
§ 2K2.1(a)(4) and § 4B1.2(b). 934 F.3d 963, 965 (9th Cir. 2019). As here, the
defendant argued that “Application Note 1 of § 4B1.2 lacks legal force because it is
inconsistent with the text of the guideline” and improperly expands the definition of
“controlled substance offense” to include inchoate offenses. Id. at 966. But we were
“compelled by our court’s prior decision in United States v. Vea-Gonzales, 999 F.2d
1326 (9th Cir. 1993),” in which we held that “Application Note 1 properly interprets
the definition of the term ‘controlled substance offense’ to encompass [inchoate
offenses such as] aiding and abetting, conspiracy, attempt, and other forms of the
underlying offense.” Crum, 934 F.3d at 967. As was true in Crum, “we are not free
to depart from the holding in our prior cases that the term ‘controlled substance
offense’ as defined in § 4B1.2(b) encompasses both solicitation and attempt
offenses.” See id. Velasco’s argument fails.
AFFIRMED.
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