Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

MEMORANDUM^* 

Appellants Alvarado, Cobarruviaz and Boone all appeal from their convictions following conditional pleas of guilty. Alvarado pled guilty to one count of manufacturing methamphetamine, while Cobarruviaz and Boone pled guilty to conspiracy to distribute methamphetamine. They now challenge the district court's denial of their motions to suppress evidence, which were premised upon alleged lack of probable cause for the search that produced it and technical violation of Rule 41 of the Rules of Criminal Procedure in the warrant that authorized that search. In addition, Stultz appeals from his sentence of imprisonment for 121 months, followed by five years of supervised release, imposed after his conviction for manufacturing methamphetamine.

Boone, Cobarruviaz and Alvarado all challenge the search of a house occupied by Cobarruviaz and Boone. The search was based upon a warrant supported by an affidavit with detailed recitations of facts linking Boone and Cobarruviaz to a methamphetamine laboratory operation. The principal contentions are that the facts were stale because they related to information gathered a month before the search was conducted, and that these facts could not support a warrant for the premises searched because they relate to an amphetamine lab located 140 miles from those premises.

We agree with the district court that there was more than a sufficient showing of probable cause to link the house and its residents to the methamphetamine lab, and that the passage of time between the gathering of the information and the obtaining of the warrant would not undermine the probative value of that showing in any material way. The affidavit demonstrated that Boone had rented a room in the same motel where there was cause to believe a drug transaction was occurring, and that Boone was associating with the participants in that transaction. A car from Boone's place of business, was found at the location of the methamphetamine lab, together with a phone message from Cobarruviaz and Boone's receipt from the motel. In addition, a drive-by of the searched premises preceding the search showed the presence of cars that had been at the lab. Thus, the connection between the lab and the premises searched was established before the warrant was issued, and was reaffirmed before the warrant was executed.

Cobarruviaz challenges the district court's finding that probable cause supported the search of her vehicle which was parked outside the searched residence. The government is correct in its position that a valid search warrant authorizing the search of premises also authorizes the search of vehicles parked on or near those premises. United States v. Alexander, 761 F.2d 1294, 1301-02 (9th Cir. 1985). Cobarruviaz' arguments are therefore foreclosed.

With respect to the validity of the search under Rule 41, the district court ruled that there had been a violation, but that the violation did not justify suppression of the evidence because it was neither fundamental nor prejudicial, and because the warrant was not executed in bad faith. See United States v. Luk, 859 F.2d 667 (9th Cir. 1988); United States v. Freitas, 856 F.2d 1425 (9th Cir. 1988); United States v. Radlick, 581 F.2d 225 (9th Cir. 1978). The problem with the warrant was that it was issued by a state court judge in a different county than that where the searched property was located, and under California law the premises and the judge should have been in the same county. People v. Fleming, 29 Cal. 3d 698, 707 (1981). That violation does not offend the United States Constitution and the principles of fundamental fairness incorporated in it. Because the warrant was supported by probable cause, the district court correctly ruled that the violation was not prejudicial since a warrant would have been issued by a state judge or magistrate in the proper venue in any event. The district court reviewed the circumstances of the decision to obtain a warrant from a judge in El Dorado county and found, particularly in the light of the obscurity of the California statutory provisions, that there was no deliberate disregard of the requirements of Rule 41 and hence no bad faith. His findings are not clearly erroneous.

There is another appeal before us, which presents an entirely separate issue. Appellant Stultz was arrested two months after the other defendants were arrested, after the methamphetamine lab that was the subject of the indictment was found and dismantled, and after the conclusion of the course of conduct alleged in the indictment. On the day of his arrest, guns were found in the car in which he was riding with another individual, and another gun was found at his house. There were indicia of drug dealing and manufacture in both locations.

Applying section 2D1.1(b) of the United States Sentencing Guidelines, the district court enhanced Stultz' base offense level two points for possession of a firearm during his offense. Stultz objected to such enhancement, and requested an evidentiary hearing, pointing out that there was no showing that he owned or possessed either gun during the course of criminal conduct alleged in the indictment.

We agree with Stultz that, under the Guidelines and our case law, an enhancement for the possession of a weapon "during commission of" an offense under section 2D1.1(b) is appropriate only where the government can show, at the very least, that the defendant owned or possessed the gun in question at the time the offense was committed. See United States v. Willard, 919 F.2d 606 (9th Cir. 1990). We therefore remand to the district court for an evidentiary hearing on this issue.

We reject Stultz' further contention that the district court misconstrued section 3B1 of the Guidelines when it determined his role in the offense. Stultz claims that the district judge erroneously believed that that section required him either to find that Stultz played a minor role in the offense, and therefore decrease the sentence, or to find that Stultz played an aggravating role, and therefore increase the sentence. Stultz suggests that the judge did not recognize that he could also choose not to depart at all. This claim is without merit. The district judge decided that Stultz deserved the enhancement based on his finding that Stultz had played an aggravating role in the offense. He then determined how much to enhance the sentence based on the extent of that role. It was in this context that he chose between "leadership role" and "minimal" aggravation. The district judge understood the scope of his discretion, and did not err in his determination.

The district court's decision to admit the evidence obtained through the search warrant here at issue is AFFIRMED. The district court's enhancement of Stultz' base offense level for his role in the offense is AFFIRMED. Stultz' case is REMANDED, however, for an evidentiary hearing on the question of whether he owned or possessed either of the guns found upon his arrest at the time of the conduct alleged in the indictment.