Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^* 

Wilfredo Quiocho appeals the district court's denial of his motion to suppress statements he made during a search of his apartment. He also appeals his sentence, arguing that it was based on an improper upward departure from his sentencing level. We affirm Quiocho's conviction but vacate his sentence and remand for resentencing.

BACKGROUND

Pursuant to a search warrant, police agents searched Quiocho's apartment. Quiocho was present throughout the search, handcuffed in the kitchen, where he was able to observe a portion of the agents' conduct of the search. Upon being given Miranda warnings, Quiocho indicated that he understood his rights and did not wish to make a statement. Subsequently, Quiocho observed the agents find, or inventory, a gun and a large amount of cash. After so observing, Quiocho spontaneously stated that those items belonged to him.

Without further Miranda warnings, the agents then questioned Quiocho about other items that they discovered in their search, outside of his observation. Quiocho gave incriminating statements in response to those questions.

The district court denied Quiocho's motion to suppress both his initial statement acknowledging ownership of the first gun and cash, and his subsequent statements made in response to police questioning. Quiocho pleaded guilty to possession of the drugs and guns found at the search, and to possession of another gun found when he was arrested subsequent to the search. His plea was conditioned upon this appeal of the suppression rulings.

At sentencing, the district court found Quiocho's adjusted offense level to be 11, including a 2 point deduction for acceptance of responsibility. The district court then departed upward 5 points for three reasons: 1) that Quiocho was a dealer of drugs; 2) that he was found with a silencer, and if convicted of its possession, his offense level would be 16, and 3) that Quiocho had "returned to illegality" after the initial investigation, i.e., he possessed a gun when he was subsequently arrested.

Discussion

We will affirm the district court's ruling as to the validity of a Miranda waiver unless it is clearly erroneous. U.S. v. Doe, 819 F.2d 206, 209 (9th Cir. 1985).¹ 

2. Did searching the apartment in Quiocho's presence constitute interrogation?

Quiocho argues that, by detaining him while the agents searched his apartment, and "showing" him the evidence they discovered, the agents' activities constituted the functional equivalent of interrogation, in violation of his asserted exercise of his Miranda rights. Thus, he argues that his initial spontaneous statement should not have been used against him. He also argues that his initial statement did not validly or voluntarily waive his Miranda rights so as to authorize interrogation by the agents. We disagree.

As a threshold matter, it is well established that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Michigan v. Summers, 452 U.S. 692, 705 (1981) (footnotes omitted). Whether the activities of the police in such a situation amount to the "functional equivalent" of interrogation because "reasonably likely to elicit an incriminating response," Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) is determined by looking at the "totality of the circumstances." United States v. Most, 789 F.2d 1411, 1417 (9th Cir. 1986).

On appeal, Quiocho asserts that the agents "showed" the drugs and guns to him. Nothing in the record, however, indicates that the manner in which the agents handled the items discovered in their search was intended, or likely, to elicit an incriminating response from Quiocho. Cf. Arizona v. Mauro, 481 U.S. 520, 527 (1987) ("psychological ploys" to elicit incriminating responses may constitute interrogation). Detaining Quiocho during the search in such a way that he would naturally observe the results of that search does not, without more, constitute "a measure of compulsion above and beyond that inherent in custody itself." Innis, 446 U.S. at 300.

Having volunteered his statements that he owned the gun and the cash, it was not unreasonable to conclude that Quiocho had waived his right to silence, and that the police could then question him without giving fresh Miranda warnings. Quiocho's volunteered statements were similar to those made by the defendant in Most, supra, which this court held constituted a valid Miranda waiver. Most, 789 F.2d at 1417 (statements constituted Miranda waiver because of "the [suspect's awareness of] the quantity of evidence against him, the fact that Most, not the police, initiated the dialogue leading to his incrimination, and the absence in the record of any force or coercion directed against him..."

It was not clear error to refuse to suppress either the initial spontaneous statement or the subsequent statements in response to interrogation.

Quiocho argues that none of the factors applied by the district court in departing upward from his base sentence were proper. He argues that all the circumstances surrounding his conviction were adequately taken into account by the sentencing guidelines, an aspect of the sentencing process which we review de novo. United States v. Lira-Birazza, 897 F.2d 981, 983-86 (9th Cir. 1990).

Quiocho argues that, by departing upwards on the basis of these factors, the district court sentenced him for conduct of which he was not found guilty beyond a reasonable doubt by a jury. This, he argues, violates due process. That argument is foreclosed by numerous cases. See United States v. Rafferty, 911 F.2d 227, 231 (9th Cir. 1990), and cases cited therein. Quiocho's other arguments as to the impropriety of each enhancing factor are also meritless, as discussed below.

1. Possession of a silencer.

The district court, after setting Quiocho's base sentencing level at thirteen, subtracted two points for acceptance of responsibility, before adding five points for the three aggravating factors at issue here. One of those factors was the presence of a silencer with one of the guns for possession of which Quiocho was convicted. The district court noted that, had Quiocho been convicted of possessing the silencer as well as the gun, his base sentencing level would have been sixteen.

Quiocho argues that, by enhancing to a sentencing level of sixteen, the district court effectively deprived him of the earlier downward adjustment for acceptance of responsibility. The flaw in this argument is that it ignores the presence of two other valid aggravating factors. Had Quiocho been convicted, inter alia, of possession of the silencer, with a base level sentence of sixteen, followed by a two point reduction for acceptance of responsibility, the district court would not have stopped there, with a final sentencing level of fourteen. Rather, it would then have departed upward for the other two aggravating factors. Quiocho has not been deprived of the benefit of the adjustment for acceptance of responsibility, because the possession of the silencer contributed only partly to the upward adjustment of five points.

2. The distribution factor.

Quiocho charges that it is unfair to depart upward on the basis of his selling of drugs, because this factor has already been accounted for in the guidelines. To depart upwards on this basis, he argues, sentences him twice for the same conduct.

Quiocho was convicted of possessing marijuana and methamphetamine in violation of 18 U.S.C., section 922(g) (3) and 21 U.S.C., section 844(a)). Both of those convictions were for purely possessory offenses. Upward departure for selling those drugs was proper because selling, as distinct from possessing, constitutes, "an aggravating ... circumstance of a kind or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b). See also Sentencing Guidelines, Sec. 5K2.0.² 

3. Returning to illegality.

Some nine months after the search of Quiocho's apartment, he was indicted and a warrant was issued for his arrest. When officers arrested him, Quiocho was in possession of another firearm. A superseding indictment was filed charging Quiocho, in two separate counts for the two separate occasions, of being a user of controlled substances in possession of a firearm, see 18 U.S.C. § 922(g) (3). He was convicted on both counts, as well as others, upon his conditional plea of guilty.

The district court relied upon Quiocho's second gun possession as the third aggravating factor on which it based its upward departure. Quiocho argues that upward departure on this ground constitutes double punishment for the possession of a gun at the time of his arrest. We agree that this ground of departure is improper on these facts.

The district court was of the view that the guidelines did not adequately capture the culpability of Quiocho's demonstrated disregard for the law by his return to criminal behavior. The question, however, is "return after what?" The mere fact that a defendant committed two similar crimes on two separate occasions would not, of itself, justify an upward departure. The Guidelines already provide for dealing with multiple counts arising from separately committed offenses. E.g., Guidelines Sec. 3D1.1.

The difference between the mere commission of two separate crimes and Quiocho's situation is that Quiocho had been discovered in the commission of the first offense during the initial search of his apartment. He had not been arrested, charged, or convicted, however. In the absence of any formal action by the authorities against Quiocho, we fail to see how he can be said to have "returned" to crime. So far as Quiocho was concerned, his first crime had never been acknowledged as such by the authorities.

Quiocho's situation is therefore quite different from that in United States v. Jordan, 890 F.2d 968 (7th Cir. 1989), where upward departure was permitted partly on the ground that the defendant had committed offenses while on bond after conviction and while awaiting sentence. The defendant in Jordan could accurately be said to have returned to criminal behavior after the law had condemned his earlier behavior. His obvious determination not to be deterred by the law's processes was properly taken into account. Similarly, in United States v. Sanchez, 893 F.2d 679, 681 (5th Cir. 1990), an upward departure was approved where the defendant had committed crimes after having been arrested and released on bond. The Fifth Circuit pointed out that the commission of additional crimes while on bond awaiting trial "indicates an unwillingness to refrain from criminal conduct that violates bond restrictions and thus threatens immediate incarceration." Id. at 682.

No such deterrents had been directed against Quiocho. He committed a second crime, which properly entered the calculation of his offense level. He did not, however, "return" to crime in any sense justifying an upward departure. Because this one of the three articulated grounds for departure was improper, we must vacate the sentence and remand for resentencing. See United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir. 1989); United States v. Cervantes Lucatero, 889 F.2d 916, 918 (9th Cir. 1989).

CONCLUSION

The district court did not err in denying Quiocho's suppression motion, and his conviction is therefore affirmed. The district court did, however, err in one of the grounds upon which it departed upward in sentencing. The sentence is therefore vacated and the matter is remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.