United States v. Carlos Navarro ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30236
Plaintiff-Appellee, DC No. 1:17-cr-02025-LRS-1
v.
MEMORANDUM*
CARLOS NAVARRO, AKA Scorpion,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Submitted November 7, 2018**
Seattle, Washington
Before: McKEOWN and FRIEDLAND, Circuit Judges, and BOLTON, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
Appellant appeals the district court’s denial of a motion to suppress,
application of a sentencing enhancement, and imposition of supervised release
conditions that burden Appellant’s right to familial association.1 Appellant was
arrested on June 2, 2017, in Yakima, Washington, in connection with an alleged
gang-related drug transaction. Appellant was ultimately charged with and pled
guilty to being a Felon in Possession of a Firearm and Ammunition, and sentenced
to a 51-month term of imprisonment. 18 U.S.C. § 922(g)(1). Over Appellant’s
objection, the court imposed, among others, two no-contact conditions: (1)
requiring Appellant to refrain from knowingly communicating or interacting with
someone engaged in criminal activity, and requiring permission from his probation
officer to knowingly communicate with a convicted felon; and (2) requiring
Appellant to refrain from knowingly communicating, associating, or interacting
with any street gang member or affiliate without permission from his probation
officer. Appellant objected to these conditions, because as written, they prohibit
contact with his children. We have jurisdiction under 28 U.S.C. § 1291, and for the
reasons that follow, we affirm in part and vacate in part, and we remand for the
1
Appellant also seeks to preserve the issue of whether his Washington state felony
conviction for harassment – threat to kill qualifies as a crime of violence.
Appellant concedes that the district court’s treatment of that felony conviction was
correct under existing Ninth Circuit precedent. See United States v. Werle, 877
F.3d 879, 884 (9th Cir. 2017), cert. denied, 138 S. Ct. 1578 (2018).
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district court to reconsider the no-contact conditions.
We review de novo the district court’s denial of a motion to suppress, but
review the underlying factual findings for clear error. United States v. Mohamud,
843 F.3d 420, 432 (9th Cir. 2016), cert. denied, 138 S. Ct. 636 (2018). We review
the district court’s application of the United States Sentencing Guidelines
(“Guidelines”) for abuse of discretion. United States v. Noster, 590 F.3d 624, 634
(9th Cir. 2009). When trial counsel objects to conditions of supervised release set
by the district court, we review for abuse of discretion, and we review carefully
conditions impacting fundamental rights. United States v. Napulou, 593 F.3d 1041,
1044 (9th Cir. 2010); United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988).
Appellant contends that the district court erred in holding that Officer Chad
Urwin (“Officer Urwin”) legally stopped him.2 An officer may conduct a brief
investigatory stop where the officer has reasonable, articulable suspicion that an
individual is engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968).
Courts look at the totality of circumstances to determine whether an officer
reasonably suspected criminal activity. United States v. Arvizu, 534 U.S. 266, 273
(2002). While there is no comprehensive list of factors, whether a group of
individuals is potentially behaving as a unit and whether a stop occurred in a
2
The court found that Appellant was “seized” within the Fourth Amendment when
Officer Urwin instructed Appellant to step outside and place his hands atop the
sedan. The Government did not cross-appeal this portion of the order.
3
“high-crime area” are both relevant considerations. See Lyall v. City of L.A., 807
F.3d 1178, 1194–95 (9th Cir. 2015); Illinois v. Wardlow, 528 U.S. 119, 124
(2000). Officers may also make inferences that draw upon their specialized
training and experience in the field. Arvizu, 534 U.S. at 273. Here, Officer Urwin
did just that.
Officer Urwin was aware of the following set of facts when he decided to
stop Appellant: (1) Appellant was in a high-crime area—a place where Officer
Urwin had participated in at least 75 arrests; (2) an apparent “hand to hand” drug
deal occurred between two males located next to a van, which seemed to be
deliberately parked adjacent to Appellant’s Dodge Neon sedan; (3) Appellant was
standing just outside the sedan’s passenger door, slightly behind a group of men
who were standing outside the van’s open door; (4) three males in the group—
including Appellant—were dressed in red attire, which is associated with the
Norteño gang. Looking at the totality of the circumstances, including Officer
Urwin’s specialized training and experience, Officer Urwin had reasonable
suspicion to detain Appellant.
Appellant additionally argues that the district court erred in adopting Officer
Urwin’s statement that the Yakima Inn (the “Inn”) was located in a “high-crime
area.” But Appellant’s reliance on United States v. Montero-Camargo undercuts
his argument because the court did carefully examine both Officer Urwin’s
4
testimony and relevant evidence—including testimony from the manager of the
Inn,3 and Deputy United States Marshal Christopher Smith (“Deputy Smith”)—to
determine that the descriptor “high-crime” was “fair and forthright.” 208 F.3d
1122, 1138 (9th Cir. 2000) (en banc).
Appellant argues that Deputy Smith lacked reasonable suspicion to frisk
him. Where an officer reasonably believes that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest the
individual for a crime, the officer can conduct a reasonable search for weapons.
Terry, 392 U.S. at 27. An officer’s search must be reasonable both at its inception
and as conducted; even in high-crime areas, Terry demands individualized
suspicion under the totality of the circumstances. Id. at 27–28; Thomas v. Dillard,
818 F.3d 864, 877 (9th Cir. 2016). Here, Deputy Smith drew upon his personal
experience and personal knowledge of Appellant’s gang membership and criminal
history and observations of Appellant’s furtive movements inside the sedan. See
United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983). Deputy Smith therefore
reasonably suspected that Appellant was armed and dangerous and permissibly
frisked him.
Appellant argues that the district court abused its discretion by applying the
3
The manager, who has worked at the Inn for nine years, testified that the Inn
frequently experiences issues that require police response.
5
four-level increase for use or possession of a firearm in connection with another
felony offense. U.S. Sentencing Guidelines Manual (“USSG”) § 2K2.1(b)(6)(B)
(U.S. Sentencing Comm’n 2018). Section 2K2.1(b)(6)(B) applies if the firearm or
ammunition facilitated (or had potential to facilitate) another felony offense.4 See
USSG § 2K2.1 cmt. n.14(A) (U.S. Sentencing Comm’n 2018). Possession of
methamphetamine is a class B felony in Washington State, and the proximity of
the firearm to the methamphetamine permits an inference that possession of the
firearm potentially emboldened the possession of the methamphetamine. United
States v. Routon, 25 F.3d 815, 819 (9th Cir. 1994) (“[T]o the extent that the
government relies upon physical possession, it must show that the firearm was
possessed in a manner that . . . had some potential emboldening role . . . in a
defendant’s felonious conduct.”); Wash. Rev. Code § 69.50.401(2)(b) (2015); see
also United States v. Valenzuela, 495 F.3d 1127, 1135 (9th Cir. 2007) (explaining
that where defendant had a firearm under his seat, the firearm could have
reasonably emboldened his possession of stolen property). Appellant kept the
firearm in an easily accessible location—his waistband—while out in public. See
Routon, 25 F.3d at 819; Valenzuela, 495 F.3d at 1135. And the proximity of the
4
“Another felony offense” includes “any Federal, state, or local offense . . .
punishable by imprisonment for a term exceeding one year, regardless of whether a
criminal charge was brought, or a conviction obtained.” USSG § 2K2.1 cmt.
n.14(C) (U.S. Sentencing Comm’n 2018).
6
firearm to the two bindles of methamphetamine—one bindle was on a keychain on
Appellant’s person and the other was inside his shirt pocket—confirms that the
court did not abuse its discretion in applying the four-level increase.
Finally, as his sons are members of the Norteño gang (one of whom is
currently in jail facing felony charges), Appellant argues that the district court must
support its decision to impose the no-contact conditions on the record with record
evidence and comply with heightened procedural safeguards. See United States v.
Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008). Where conditions of supervised
release implicate a “particularly significant liberty interest,” the district court must
justify its imposition of the condition on the record with record evidence that the
condition is necessary to accomplish one or more of the factors listed in
18 U.S.C. § 3583(d)(1), and explain why it involves no greater deprivation of
liberty than is reasonably necessary. United States v. Weber, 451 F.3d 552, 561
(9th Cir. 2006). And when a condition affects the right to familial or intimate
association, “the district court must ‘undertake an individualized review’ on the
record of the relationship between the defendant and the family member at issue to
determine whether the restriction is necessary to accomplish the goals of
deterrence, protection of the public, or rehabilitation.” United States v. Wolf Child,
699 F.3d 1082, 1090 (9th Cir. 2012) (citing Napulou, 593 F.3d at 1047);
Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1079 (9th Cir. 2011) (“The substantive
7
due process right to . . . familial association is well established.”). It is not enough
that a reviewing court may assemble such evidence from its own review of the
record, and the court’s failure to comply with heightened procedural requirements
cannot be remedied by delegating authority to a probation officer to mitigate the
severity of the limiting condition by allowing contact with family members. Wolf
Child, 699 F.3d at 1092, 1095–96.
Here, the district court committed procedural error. While it is clear that the
court did not intend to preclude contact between Appellant and his sons, the court
failed to satisfy the explicit requirement of on-the-record individualized findings
and justifications for the no-contact conditions that it nevertheless imposed. See
Napulou, 593 F.3d at 1047; Stoterau, 524 F.3d at 1005. As written, the no-contact
conditions violate Appellant’s substantive due process rights. See Rosenbaum, 663
F.3d at 1079. Accordingly, we vacate those conditions and remand to the district
court with instructions either to make the required findings and justifications for
the no-contact conditions, or, alternatively, to carve out an exception to the no-
contact conditions that allows Appellant to interact with his sons.
AFFIRMED in part, and VACATED and REMANDED in part.
8