US v. Arnoldo Castillo, No. 10-4459 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4459 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ARNOLDO SALAZAR Medrano-Reyes, CASTILLO, a/k/a Edgar Guadalupe Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:09-cr-00060-NCT-1) Submitted: June 29, 2011 Decided: July 13, 2011 Before WILKINSON, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas H. Johnson, Jr., GRAY, JOHNSON & LAWSON, LLP, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Harry L. Hobgood, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A federal grand jury returned a three-count indictment against Arnoldo Salazar Castillo. with conspiracy to distribute Count one charged Castillo 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (2006). Count two charged Castillo with possessing with intent to distribute approximately 4.36 kilograms of marijuana in violation of § 841(a)(1), (b)(1)(D) (2006). Lastly, count three charged Castillo with possession with intent to distribute approximately 5.07 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D). Castillo filed a motion to suppress the evidence seized pursuant to warrants issued by a state district court judge, claiming the warrants violated Fed. R. Crim. P. 41(b)(1) because the warrants were not issued by a judge of a state court of record. Fed. R. Crim. P. 41(b)(1). The district court denied the motion, and Castillo pled guilty, pursuant to a plea agreement, to count two of the indictment. The district court sentenced Castillo to forty-one months in prison. Castillo timely appealed. We affirm. On appeal, Castillo first contends that the district court erred in denying his motion to suppress. * * This court Castillo did not enter a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2). Because an unconditional guilty plea generally waives all antecedent, (Continued) 2 reviews factual findings underlying the district court s denial of a motion to suppress conclusions de novo. (4th Cir. factual finding is clear error and its legal United States v. Blake, 571 F.3d 331, 338 cert. 2009), for denied, clearly 130 S. erroneous Ct. if 1104 this (2010). court on A the entire evidence is left with the definite and firm conviction that a mistake has been committed. 532 F.3d 326, omitted). evidence 337 (4th However, is entirety, if plausible this Cir. court in the 2008) (internal district light will United States v. Harvey, of not quotation court s the reverse account record the marks of the viewed in its district court s finding even if it would have decided the fact differently. United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal quotation marks and alteration omitted). words, when district two court s views of choice the evidence between them are In other permissible, cannot be the clearly nonjurisdictional issues, Tollet v. Henderson, 411 U.S. 258, 266-67 (1973), Castillo s right to challenge on appeal a Fourth Amendment issue raised in a motion to suppress is waived by his unconditional guilty plea. However, the Government failed to argue that Castillo waived his right to pursue these issues by virtue of his guilty plea. We thus accept the Government s invitation to consider the merits of Castillo s appeal of the denial of his motion to suppress. See United States v. Metzger, 3 F.3d 756, 757 (4th Cir. 1993). 3 Id. erroneous. (internal quotation marks and alteration omitted). This court also defers to the district court s credibility determinations, for it is the role of the district court to observe witnesses and weigh their credibility during a United States v. Abu Ali, 528 pre-trial motion to suppress. F.3d 210, omitted). 232 (4th Cir. 2008) (internal quotation marks This court construes the evidence in the light most favorable to the Government, as the party prevailing below. United States v. Griffin, 589 F.3d 148, 150 (4th Cir. 2009), cert. denied, 131 S. Ct. 1599 (2011). Castillo does not contend that there was insufficient probable cause for the state district court judge to issue the warrants. Nor does he argue that the good faith exception does not apply. Instead, he simply argues that the warrants were issued in violation of Fed. R. Crim. P. 41(b)(1) because the issuing judge was not a judge of a state court of record in the district. It is undisputed that the North Carolina district court is not a court of record. This court has held that, in the context of joint state and federal undertaking, Rule 41 s application must hinge on whether the proceeding, as distinct from the investigation, was federal. United States v. Claridy, 601 F.3d 276, 281 (4th Cir.), denied, cert. 131 S. Ct. 4 259 (2010). When such cooperation and state occurs, law, investigating an application violations for a search of both warrant federal cannot categorically be deemed a proceeding governed by the Federal Rules of Criminal Procedure, based simply on the role that federal law-enforcement officers played in the investigation. Id. at 282. [T]he fact that [the warrants] commanded a search for evidence of a state-law violation would indicate that the warrant proceeding Federal Rule 41(b). was a state proceeding, Id. at 283. not one under Our review of the record leads us to conclude that the request for a search warrant from the North Carolina district court judge was not a federal proceeding, and consequently, Fed. R. Crim. P. 41 did not apply. Next, Castillo contends that the district court erred in basing his sentence on a drug quantity of 89.78 kilograms. This court review[s] the district court s calculation of the quantity of drugs attributable to a defendant for sentencing United States v. Randall, 171 F.3d purposes for clear error. 195, 210 (4th Cir. 1999). Court will only reverse Under this standard of review, this if left with the conviction that a mistake has been committed. definite and firm United States v. Slade, 631 F.3d 185, 188 (4th Cir. 2011) (internal quotation marks omitted). In determining drug quantity for sentencing purposes, where the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the 5 controlled U.S. substance. Sentencing Guidelines Manual ( USSG ) § 2D1.1 cmt. n.12 (2008); United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). The district court is afforded broad discretion as to what information to credit in making its Cook, 76 F.3d at 604 (internal quotation marks calculations. omitted). court Our review of the record indicates that the district did not clearly err in determining the quantity of marijuana attributable to Castillo. Lastly, unreasonable. applying Castillo contends that his sentence was This court reviews a sentence for reasonableness, an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009). examines the sentence for In so doing, the court first significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider selecting the a [18 sentence U.S.C.] based § on 3553(a) clearly [(2006)] erroneous failing to adequately explain the chosen sentence. U.S. at 51. substantive Finally, reasonableness the court of the (quoting Gall, 552 U.S. at 51). properly calculated Guidelines factors, facts, or Gall, 552 then consider[s] the sentence imposed. Id. A sentence imposed within the range is presumed reasonable. United States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 6 2010). After a thorough review of the record, we conclude that Castillo s sentence was both procedurally and substantively reasonable. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

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