Unpublished Disposition, 909 F.2d 1490 (9th Cir. 1988)

MEMORANDUM^** 

These consolidated appeals are taken from convictions arising from the arrests of several people, at the Mexican border and in Covina, California, in which large quantities of cocaine were seized. Gabriel Salas-Moreno appeals the calculation of his sentence under the Sentencing Guidelines; Alfredo Apodaca Villegas appeals the lawfulness of police entry into his apartment and the validity of his challenge of Pedro Prieto-Villa to the existence of probable cause for his arrest and the computation of his sentence under the Sentencing Guidelines.

On June 8, 1988, appellant Gabriel Salas-Moreno and a companion, Karen Meyer, were arrested transporting 264 pounds of cocaine across the border from Mexico. Karen Meyer identified a hotel in West Covina, California, as the destination for delivering the drug. In their possession, police found a record of a telephone call a week earlier to a number belonging to appellant Alfredo Apodaca Villegas (Villegas).

Drug Enforcement Administration (DEA) agents linked the telephone number with Villegas' apartment in Covina and moved to investigate the apartment as a possible destination for the drug delivery. They observed the apartment and notified the Covina Police Department that they would be seeking a search warrant. When they received word that three men had arrived at the apartment, they proceeded without a warrant.

The agents later testified that the front door of the apartment was open as the agents approached. Villegas, appellant Pedro Prieto-Villa (Prieto), and another man, Luis Vargas Tovar, were seated in the apartment.¹  Villegas did not testify at the suppression hearing. In a declaration made in July 1988, Villegas stated that the agents arrived, knocked, and entered " [b]efore anyone inside did or said anything.... Most of the officers were armed. Some of the officers immediately went upstairs and commenced searching. No one ever asked for permission or consent prior to searching." He stated that after the search he was asked to sign a consent form and refused.

At the suppression hearing, both Agent Georges and Officer McGraw testified that their guns were not drawn when they approached and entered the apartment. Agent Georges testified that McGraw identified himself and the others as police officers, stated that they were conducting a narcotics investigation, asked to come in, and asked for Villegas. Tovar then invited them to enter. When the police had taken a few steps inside the door, Villegas came toward the door. The police identified themselves, stated they were conducting a narcotics investigation, and asked for permission to search. Villegas told them to go ahead. Georges testified that he then walked away and stood at the bottom of the stairs where he could observe the men in the room, since there had been no search or patdown conducted at that point and he wanted to watch their hands and watch for weapons.

Officer McGraw's testimony differed on the circumstances of the entry. He testified that Villegas invited them to enter before they stepped inside the door, and that when McGraw and Georges entered, they were followed by a few other officers. They spoke with Villegas and requested permission to search the apartment. McGraw testified that he advised Villegas he did not have to consent, and that if he did, McGraw would ask him to sign a consent form. Villegas consented immediately.

The district court first found that Agent Georges went to the apartment with the following plan: two agents would go to the door and ask permission to enter, while two others would wait outside awaiting permission to search. The court then found the following:

7. Agent Georges and Officer McGraw went to the front door of the apartment and observed two males seated in the apartment. Officer McGraw knocked on the door and Tovar answered the door. Officer McGraw asked for permission to enter the apartment and asked for defendant Villegas. Defendant Tovar invited the two officers into the apartment and pointed to the defendant Villegas. Defendant Villegas was then advised that the officers were conducting a narcotic investigation and asked for permission to search the apartment. Defendant Villegas gave his oral consent to conduct the search. The search resulted in the discovery of a pound of cocaine and $650,000 in cash, relevant documents and a weapon.

Order, November 30, 1988, at 3. The court further found that Villegas later refused to sign a consent form but again acknowledged oral consent to the search. The court also described the entry to which Tovar had consented as "minimal."

The district court concluded that on these facts the original entry into the apartment was legal because Tovar had "authority" to consent to the "minimal entry," and that "the consent to the search of the apartment by Villegas was free and voluntary." Id. The court made no other factual findings regarding the entry or police actions during the search. Villegas entered a conditional guilty plea based on appealing the determination of the suppression motion.

Salas-Moreno challenges the application of Sec. 4.A1(d) of the Sentencing Guidelines, which governs offenses committed while the defendant is under any criminal justice sentence. Two points were added to the computation of his sentence based on a conviction in 1986 for driving under the influence. Following his plea of nolo contendere on that charge, a thirty-day sentence was suspended and he was placed on probation for three years. In June 1987, because he failed to appear in court and to comply with conditions of his probation, probation was ordered summarily revoked and a bench warrant issued for his arrest. His arrest at the border followed in June 1988. In February 1989, while Salas-Moreno was in federal custody on cocaine smuggling charges, the California court set aside the probation revocation on the drunk driving violation, reinstated the probation, and then terminated the probation. Based on these developments, Salas-Moreno contends that he was not "under any criminal justice sentence" when he committed the crime for the purposes of computing his sentence under Section 4A.1(d).

Villegas argues first that the entry was unlawful because third party consent to entry was not valid. The district court found that the police asked for Villegas as they identified themselves and that they were then invited in by Tovar. A review of the transcript of testimony at the suppression hearing shows that the district court's findings of fact were not clearly erroneous. The findings are supported by the record, since they are consistent with Agent Georges' testimony. When Tovar invited the police into the apartment, the officers had no reason to know who admitted them. The police had identified themselves, stated what they were doing, and asked for the person in possession of the apartment.

This case is controlled by United States v. Walker, 576 F.2d 253 (9th Cir. 1978), cert. denied, 439 U.S. 1081 (1979), under which entry was lawful.

Villegas also argues that his consent was tainted because he had been seized or detained when the police entered the apartment.²  The district court found that "the consent to the search of the apartment by Villegas was free and voluntary." Order, November 30, 1988, at 3. Even voluntary consent, however, may be tainted by illegal detention. United States v. Perez-Esparza, 609 F.2d 1284 (9th Cir. 1980) (voluntary consent to search not sufficiently attenuated from unconstitutional police conduct three hours earlier). The district court did not state its conclusion as to whether these circumstances amounted to detention. We review de novo the question of whether a given set of facts constitute detention. United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987).

The district judge found that Georges planned to take two officers into the apartment. He then found that Tovar "invited the two officers into the apartment." Order, November 30, 1988, at 3 (emphasis added). "Villegas was then ... asked for permission to search the apartment." Id. (emphasis added). The judge further described the entry as "minimal."

We note that the facts propounded by Villegas to support his argument that he was detained differ from those presented in his earlier account of the incident and also from those offered in any testimony at the suppression hearing. Most important, Villegas' description of events is completely different from that found by the district court. The court's factual findings preclude the sequence of events described by Villegas. These findings are supported by Agent Georges' testimony. Since the findings are supported by the record, they are not clearly erroneous.

II. SALAS-MORENO'S "CRIMINAL JUSTICE SENTENCE"

Section 4A.1(d) of the Sentencing Guidelines states that two points shall be added "if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." Salas-Moreno argues that the absence of probation revocation from this list means that the section should not apply. This argument is meritless; the Guidelines unambiguously refer to "any" criminal justice sentence, and we have held that this section includes unsupervised probation for driving without a license. United States v. McCrudden, 894 F.2d 338, 339 (9th Cir.), cert. denied, 110 S. Ct. 1534 (1990).

Salas-Moreno contends that his violation of the terms of his probation removed him from being "under" a "criminal justice sentence." However, the appellant admits he received a conditional sentence under California Penal Code Sec. 1203b. The record shows that a 30-day sentence with one day credit for time served was suspended, with the defendant to meet specified conditions of probation for 36 months. The defendant does not contend that he completed this sentence.

He does argue, however, that his probation had "in effect" ended at the time he failed to appear, when his probation was summarily revoked and a bench warrant issued, Reply Br. at 3, and that this response to his violation removed him from being "under" a criminal justice sentence. In People v. Vickers, 503 P.2d 1313, 105 Cal. Rptr. 305, 8 Cal. 3d 451 (1972), the California Supreme Court distinguished probation revocations where defendants had absconded from those in which the defendants were in custody. Noting that " [d]ue process does not require that a defendant profit by such wrongdoing," the court held that summary termination was simply a method of avoiding the danger that the probationary period would run while the defendant evaded the authorities. 503 P.2d at 1320, 105 Cal. Rptr. at 312, 8 Cal. 3d at 460.

The distinction in Vickers which disapproves profit from wrongdoing is apt here. The record shows that Salas-Moreno's sentence was suspended pending compliance with the conditions of his probation. The court's quite ordinary response to his failure to appear or comply did not remove this sentence but simply responded to his violation of its attendant conditions. In his Reply brief, Salas-Moreno virtually concedes as much by admitting that had the probation not been terminated, but only reinstated, "there would not have been, in effect, any revocation at all," and then conceding that the probation was reinstated before it was terminated. Reply Br. at 3-4. This becomes an unpersuasive argument that the termination of his probation in February 1989, while he was in prison on more serious charges, was actually a termination in June 1987, while he was sought on a warrant for violation of that probation.

Salas-Moreno was under a sentence at the time of the drug arrest; therefore, he has no grounds to challenge the calculations under the Sentencing Guidelines.

The judgment of the district court regarding Alfredo Apodaca Villegas and Gabriel Salas-Moreno is AFFIRMED.