United States v. Richard Aiello, III , 393 F. App'x 157 ( 2010 )

Case: 09-10599 Document: 00511214649 Page: 1 Date Filed: 08/25/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 25, 2010
No. 09-10599
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD AIELLO, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-149-1
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Following a jury trial, Richard Aiello, III, was found guilty of one count of
conspiracy to distribute and possess with intent to distribute 50 grams or more
of methamphetamine, in violation of 21 U.S.C. §§ 841 (a)(1), (b)(1)(B), and 846.
The district court sentenced Aiello to 262 months imprisonment and four years
supervised release. He now appeals the district court’s denial of his motion to
suppress and the sentence imposed. Finding no error, we affirm.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-10599 Document: 00511214649 Page: 2 Date Filed: 08/25/2010
No. 09-10599
Aiello first contends that the search warrant affidavit was based on stale
information and failed to establish a nexus between the illegal activity and his
residence. The issue before the court is the applicability of the “good faith”
exception to the exclusionary rule, and specifically whether the warrant lacked
sufficient indicia of probable cause “as to render official belief in its existence
entirely unreasonable.” United States v. Gant, 759 F.2d 484, 487 (5th Cir. 1985)
(internal quotation marks and citation omitted). We review factual findings on
a motion to suppress for clear error and determinations regarding the
reasonableness of an officer’s reliance on a warrant and the sufficiency of the
warrant de novo. United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999).
The affidavit showed an ongoing pattern of criminal activity, relying on
detailed information from a confidential source (CS) who made regular
purchases from Aiello at his home. Although the CS discontinued dealing with
Aiello in January 2008, the CS resumed purchases sometime in May 2008, and
the CS made a controlled purchase from Aiello on June 24, 2008. During the
controlled purchase, drug agents observed Aiello return to his home for a brief
time before delivering the contraband to the CS at another location. The search
warrant was executed the following day. On these facts, we do not conclude that
the affidavit was so lacking in indicia of probable cause due to staleness or an
insufficient nexus that reliance on it was objectively unreasonable. See United
States v. Pena-Rodriguez, 110 F.3d 1120, 1130 (5th Cir. 1997); United States v.
Broussard, 80 F.3d 1025, 1034 (5th Cir. 1996). Accordingly, we find no error in
the district court’s suppression ruling. Thus, we need not reach the
Government’s alternate contention that any error in the admission of the
evidence was harmless.
Aiello next argues that the district court erroneously attributed 4,536
grams of methamphetamine to him as relevant conduct. The amount at issue
is the estimated amount of methamphetamine that David White sold to Jeff
Berry, which was attributed to Aiello on the basis that he was White’s supplier.
2
Case: 09-10599 Document: 00511214649 Page: 3 Date Filed: 08/25/2010
No. 09-10599
Aiello contends that no evidence established that he was supplying White or that
he was a part of the conspiracy during the relevant time period.
A district court’s calculation of the quantity of drugs involved in an offense
is a factual determination that is reviewed for clear error. United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). In the absence of rebuttal
evidence, the district court may adopt the facts contained in the presentence
report (PSR) so long as those facts have an adequate evidentiary basis. See
United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). The district court
has “wide discretion in determining which evidence to consider and which
testimony to credit.” United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
Here, the PSR stated that Berry knew that Aiello was White’s supplier
because Berry and White had picked up methamphetamine from Aiello on at
least two occasions. That is supported by other evidence in the record,
specifically testimony at the suppression hearing from a federal agent that Berry
and Brooke Cooper implicated Aiello as White’s supplier. As a finding that
Aiello was White’s supplier is plausible in light of the record as a whole, we find
no clear error in the district court’s drug quantity determination. See United
States v. Solis, 299 F.3d 420, 455 (5th Cir. 2002).
The judgment and sentence of the district court are AFFIRMED.
3