Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

No. 89-30195.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING and ALARCON, Circuit Judges, and DICKRAN TEVRIZIAN, District Judge^* 

MEMORANDUM^** 

Bobby Ray Allen (Allen) appeals from his conviction for possession with intent to distribute of 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (i) (B) (ii).

Allen raises the following issues on appeal:

1. Did the search of the Allen's suitcase violate the fourth amendment?

2. Did the district court violate the Interstate Agreement on Detainers, 18 U.S.C. app. Secs. 1-9 (1988), by taking the government's motion to dismiss under advisement and subsequently issuing a written order?

3. Was it improper to add a gun enhancement to the Allen's offense level?

4. Was the defendant's sentence incorrectly increased twice for the use of the same weapon?

DISCUSSION

Standard of Review

The district court's findings of fact at a suppression hearing will be upheld unless they are clearly erroneous. United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987). The lawfulness of the search presents mixed questions of law and fact which are reviewed de novo. Id.

1. The Entry.

Warrantless searches of a dwelling are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380 (1980). The fourth amendment protection extended to an individual in his hotel room is equal to that which he enjoys in his home. Hoffa v. United States, 385 U.S. 293, 301, 87 S. Ct. 408, 413 (1966); United States v. Winsor, 846 F.2d 1569, 1572 & n. 2 (9th Cir. 1988) (en banc).

However, a search warrant is not required for a search to which there was consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973). In order for consent to excuse the need for a warrant, the consent must be voluntary. Id. at 222, 93 S. Ct. at 2045. Whether the consent was voluntary is a question of fact to be determined from the totality of all the circumstances. Id. at 227, 93 S. Ct. at 2047-48.

At the suppression hearing, there was conflicting testimony regarding the issue of whether or not Allen consented to Officer Thomas Moore's entry. Allen's girlfriend, Sheri Hammonds testified that Moore forced his way into the room.

The trial court found that Allen had consented to the entry of Moore into the hotel room. This finding was supported by Moore's testimony that Allen had invited Moore into the room. Moore stated that Allen's body language indicated that Moore should "come on." While there was conflicting testimony from Allen's girlfriend, Ms. Hammonds, the trial court discounted Ms. Hammonds' testimony because of her admitted use of cocaine that evening and because of her considerable sympathy for Allen, which Ms. Hammonds displayed on the witness stand. Given these facts, it cannot be said that the findings of the trial court were clearly erroneous.

However, Allen contends that even if he consented to the entry of Moore into the room, the consent was vitiated by the manner in which it was procured. The appellant argues that his consent was not voluntary because the police obtained his consent through the use of their informant, Julie Burbach. The appellant primarily relies on Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261 (1921).

Gouled is distinguishable from the present case. In Gouled, the government agent's search exceeded the scope of the consent granted. See 3 W. LaFave, Search and Seizure Sec. 8.2(m), at 223 (2d ed. 1987). The defendant had allowed the agent into his office for a social visit, not to ransack his files. 255 U.S. at 304, 41 S. Ct. at 263. In this case, the scope of the consent was not exceeded by Moore's entry into the room. Allen invited Moore into his room and Moore stepped one-and-one-half feet into the room.

Allen also contends that his consent was not voluntary because the government used Burbach to gain his consent. However, the fact that the police gained Allen's consent to allow Moore into the room through the services of Burbach does not destroy the voluntary nature of the consent.

In the present case, Allen was relying on his misplaced confidence that Burbach would not betray him. He was not depending on the security of his hotel room. Allen does not have a fourth amendment right protecting him from the consequences of betrayal by a person he trusts. See Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 413 (1966); see also Illinois v. Perkins, 58 U.S.L.W. 4737, 4739 (U.S. June 4, 1990).

Allen also argues that his consent was vitiated by the fact that Moore did not reveal his true identity. However, the fact that Moore did not reveal his true identity does not affect the validity of his consent. A government officer can enter a private home or hotel room at the invitation of the occupant without revealing his identity or purpose. Lewis v. United States, 385 U.S. 206, 207-11, 87 S. Ct. 424, 425-27 (1966).

Allen attempts to distinguish Lewis by arguing that, unlike the defendant in Lewis, Allen had not turned his hotel into a commercial center. However, this distinction does not affect our analysis. The important fact in this case is that Allen invited Moore into his hotel room in connection with his efforts to reconvey the cocaine to Burbach. The Lewis court stated that " [a] government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant." Lewis v. United States, Id. at 211, 87 S. Ct. at 427. Were Allen's position to prevail, a drug dealer could protect himself from an undercover agent by simply renting a different hotel room for each drug transaction.

The trial court properly held that Allen's consent was not made involuntary by the use of Burbach and the failure of Moore to reveal his true identity.

2. The Search of the Suitcase.

Allen argues that, even if Moore's entry was lawful, the warrantless search of his suitcase violated his fourth amendment rights and all evidence obtained from the search of the suitcase should have been suppressed.¹ 

" [A] police officer may, incident to a lawful arrest, conduct a contemporaneous warrantless search of the arrestee's person and of the area into which the arrestee might reach to retrieve a weapon or destroy evidence." United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir.), cert. denied, 461 U.S. 936 (1983) (citing Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 2040 (1969)).

In order for the search of Allen's suitcase to be a valid warrantless search under the "incident to arrest" exception, the suitcase must have been in the area within the immediate control of the arrestee at the time of the arrest. Chimel v. California, 395 U.S. at 763, 89 S. Ct. at 2040. "The number of persons being arrested, the number of officers present, their physical positioning with regard to the arrestee and the place searched, the display of guns by the officers and, of course, the distance between the arrestee and the place searched" are all relevant to the determination of whether the search was validly incident to the arrest. United States v. McConney, 728 F.2d 1195, 1207 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

The violent encounter prior to arrest between Allen and Officer Moore supports the validity of the search. Allen admitted Moore into the hotel room, then pulled the gun and threatened to shoot. Moore struggled with Allen for control of the weapon, the struggle taking the two men from the living room, through the bathroom, and into the bedroom, a distance of approximately 12 feet. Allen was subdued and handcuffed in the bedroom only after two backup officers rendered assistance. During part of the fray, Allen's girlfriend sat unguarded in the living room to the front door of the suite, the officers had ample cause to search the suitcase incident to Allen's arrest, given the possiblity that Allen or his girlfriend may have lunged for the suitcase, and the potential for violence had such an attempt been made. See United States v. McConney, 728 F.2d 1195, 1207 (9th Cir. 1984) (en banc).

Standard of Review

Factual matters are reviewed under a clearly erroneous standard, and legal conclusions are reviewed de novo. McConney, 728 F.2d at 1200-01.

On March 22, 1989, the district court held a hearing to determine whether the government could show good cause to grant a continuance of Mr. Allen's trial date past the 180 day period required by the Interstate Agreement on Detainers ("IAD"). 18 U.S.C. app. Sec. 2 art. III (1988). The government's motion for a continuance was based upon the fact that one of its witnesses, Officer Thomas Moore, would be unavailable from March 27 through March 31, 1989. Moore was scheduled to attend a law enforcement seminar in Arizona. Allen contends that good cause did not exist for this continuance, and that the continuance was neither necessary nor reasonable since a substantial lapse of time had occurred without a trial date being scheduled.

Article III of the IAD provides, in pertinent part, as follows:

Provided, That, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

Id.

Moore was a principal witness for the government. As the seminar was a work-related absence, and not merely a personal vacation, the court was justified in finding that good cause existed to grant a continuance of the trial.

Both Allen and his counsel were present at the March 22, 1989, hearing to determine whether a continuance was appropriate. In addition, the hearing was held in open court. After the government asserted that Officer Moore would be unavailable from March 27 to March 31, the court took the matter under advisement and granted the continuance two days later by written order. Allen contends that this procedure violated the IAD.

Allen contends that the IAD requires not only that a continuance hearing must be made in open court with the defendant present but that the judge must rule on the continuance in open court with the defendant present. Allen further objects to the fact that neither he nor his counsel was present when the court considered a supplemental factual memorandum filed by the government.

In the present case, Allen was present and represented by counsel at the continuance hearing. The hearing was conducted in open court and the government's basis for its continuance motion was presented at that time. The open court requirement of the IAD was satisfied as good cause was shown in open court.

In addition, the supplemental memorandum at issue simply served to inform the court that the defendant agreed to stipulate to the prior analysis of the cocaine, so that the court would no longer need to consider the issue regarding the DEA chemist in deciding whether to grant the continuance. The purpose of the memo was to inform the court that the government's sole ground for seeking the continuance was Officer Moore's unavailability. Its submission did not require the court to hold a hearing as to its contents since it did not add a new ground for the continuance; rather, it took a ground away.

For all of the above reasons, the district court was not in error in denying Allen's motion to dismiss.

Standard of Review

The legality of a criminal sentence is reviewed de novo. United States v. Stafford, 831 F.2d 1479, 1480 (9th Cir. 1987). Sentencing that falls within statutory limits, however, is left to the sound discretion of the district court and is reviewed under an abuse of discretion standard. See 18 U.S.C. § 3742(e) (1988). Findings of fact supporting a sentence imposed under the Sentencing Guidelines are reviewed under a clearly erroneous standard. 18 U.S.C. § 3742(e) (1988); United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989). " ' "A district court's finding that a defendant does not qualify for minimal or minor participant status is, as the commentary points out, 'heavily dependent on the facts of the particular case,' and should be upheld unless clearly erroneous." ' " United States v. Rexford, No. 89-10199, slip op. 5289, 5293 (9th Cir. May 24, 1990) (quoting United States v. Christman, 894 F.2d 339, 341 (9th Cir. 1990) (quoting United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989) (per curiam) (quoting Sentencing Guidelines Sec. 3B1.2 commentary))).

Allen contends that he was disadvantaged by the prosecution's decision to conduct separate trials of the assault charge and the narcotics charge in state and federal court. In support of this contention, Allen has calculated what the sentencing level would have been had both offenses been prosecuted in federal court. Although his method of determining his sentencing level is inaccurate in that "grouping" the offenses would not have been appropriate (see Sentencing Guidelines, Sec. 3D1.2), Allen does reach the correct result. The total offense level would have been 25 instead of 26, with a corresponding sentence of 57 to 71 months.

However, there has been no argument that the prosecution exceeded its authority in choosing to split Allen's case between two jurisdictions. The commentary to Sec. 5G1.3 makes reference to Allen's situation, and notes that a court

may consider imposing a sentence for the instant offense that results in a combined sentence that approximates the total punishment that would have been imposed ... had all of the offenses been federal offenses for which sentences were being imposed at the same "time."

Sentencing Guidelines Sec. 5G1.3 commentary (emphasis added).

Imposing such a sentence is simply another option available to the court. There is nothing in the Sentencing Guidelines which requires a court to forego enhancement for possession of a weapon in a narcotics offense if the same weapon was previously the object of an assault conviction in state court. Hence, the district court's sentence was not improper.

Mr. Allen also contends that his use of a gun in connection with his offense was counted twice "in violation of the spirit and letter of the Guidelines." Allen's use of the firearm increased the level of the narcotics offense, and was also one factor considered by the court in rejecting the appellant's request for a two-point reduction as a "minor participant."

Pursuant to Sentencing Guidelines Sec. 2D1.1(b) (1), possession of a dangerous weapon, including a firearm, during the commission of an offense involving drugs is sufficient to aggravate an offense level by two points. Sentencing Guidelines, Sec. 2D1.1(b) (1); Gillock, 886 F.2d at 222-23. Since Allen was in possession of a .38 caliber revolver during the commission of his narcotics offense, his base level of 26 was increased to 28 (though it was later reduced again to 26 for acceptance of responsibility). The district court was not in error in enhancing Allen's sentence on the basis of his possession of a gun.

However, Allen contends that it was improper for the district court to base a denial of minor participant status solely on his possession of the firearm. Allen argues that using the gun to take away a minor role adjustment after using it as a specific offense characteristic would subject him to impermissible double counting. According to Allen, a court cannot use an offense characteristic, such as use of a firearm, to thwart a minor role adjustment.

Whether a defendant is a "minor" or "minimal" participant in the criminal activity is a factual determination subject to the clearly erroneous standard. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989). "Such a factual determination turns upon culpability which requires consideration of a variety of factors." Id.

There is no authority for the proposition that, in determining minor participant status, a court may not consider any circumstance surrounding a crime which also happens to be classified as an offense characteristic in the Sentencing Guidelines. The presentence report stated that it would have recommended a reduction based on minor participation, had Allen's role not been aggravated by the fact that he pointed a loaded firearm at Officer Moore in order to keep the drugs in his possession. It was not the fact that Allen merely possessed a gun at the time the offense was committed that induced the court to find that defendant was not entitled to a minor role reduction. It was appellant's threatening conduct involving the aggravated use of a gun which was a factor in denying the minor role status.

Moreover, Allen was in possession of a large amount of cocaine, approximately one kilogram, at the time of the offense. This alone would be sufficient to deny him the status of a minor or minimal participant. See United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989) (497 grams of cocaine sufficient to deny a minor role adjustment).

The district court was not in error in denying appellant a minor role adjustment to his offense level.

For the reasons stated above, the judgment of the district court is AFFIRMED.