Defendant-Appellant Eloy Silva appeals the denial of his motion to suppress and his sentence. We affirm.
FACTS AND PROCEEDINGS
In March 2015, the U.S. Marshals Service executed an arrest warrant on Silva for violation of his parole. After Silva was detained outside his trailer, two U.S. Marshals with the Gulf Coast Violent Offender Task Force conducted a protective sweep of the trailer to check for individuals inside. They did not have a search warrant. During the sweep, one of the marshals opened a compartment under a mattress and discovered a shotgun, ammunition, and body armor. No one other than Silva was found in the trailer or on the property.
Silva, a felon with an extensive criminal history, was charged with one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Silva filed a motion to suppress the firearm and ammunition, claiming that (1) the protective sweep was neither reasonable nor permissible, and (2) alternatively, the officers exceeded the scope of a lawful protective sweep. After conducting an extensive suppression hearing, the district court denied Silva's motion. He subsequently pleaded guilty without a plea agreement.
Silva's presentence report reflected that his base offense level was 20 and, with a two-level reduction for acceptance of responsibility under § 3E1.1(a) of the United States Sentencing Guidelines ("Sentencing Guidelines" or "USSG"), his total offense level was 18.
Silva argues that the district court erred in denying his motion to suppress because (1) the protective sweep was not justified, and (2) alternatively, the officers exceeded the scope of a lawful protective sweep. Silva also contends that the district court erred procedurally by failing to reduce his offense level for acceptance of responsibility under USSG § 3E1.1(b).
A. Motion to Suppress
When considering a district court's denial of a motion to suppress, we review its findings of fact for clear error and its conclusions of law de novo.
A warrantless entry into a home is presumptively unreasonable.
"A `protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others."
1. Was the Protective Sweep Justified?
Silva contends that the protective sweep was not justified or permissible because there were no exigent circumstances. He contends alternatively that the agents created the exigent circumstances.
The evidence before the district court demonstrated that the marshals' protective sweep was justified. U.S. Marshal Alfredo Lujan, the "primary" officer among the team of marshals that executed the warrant, testified that he reviewed Silva's criminal history before executing the arrest warrant. Lujan described Silva's criminal history as "pretty extensive." His numerous convictions included assault, aggravated kidnapping with a weapon, and making a terroristic threat. At the time of the instant arrest, there were seven outstanding warrants for Silva's arrest—three for impersonating a peace officer, at times with a weapon; three for "unlawful contract with a surety bond company"; and one for violation of parole. Lujan also testified that he was aware that Silva was a member of the Tango Blast gang, which "started [as] small street gangs and ha[s] grown while in prison and ha[s] actually done work for the cartels." Lujan had also received information that there might be a weapon in the trailer. Lujan testified that Silva's mother, who it turned out owned the trailer, was uncooperative with him regarding Silva's whereabouts.
When the officers arrived, Silva did not exit the trailer for more than one minute. Lujan testified that, even though the marshals had no indication that anyone else was inside the trailer, in light of his 13 years of experience, he believed the trailer could still contain a safety risk to the officers. Further, U.S. Marshal Ray Tamez, who conducted the sweep with Lujan, testified that they conducted the sweep because they were concerned for their safety, specifically that they could not be certain that no one else was inside the trailer.
At the end of the suppression hearing, the district court concluded that it was reasonable for the officers "to be concerned about other people who may be affiliated with the Defendant who would want to help [him and] that might still be in the trailer." The court explained that someone else could have been in the trailer and "could have stuck a gun out the window [and] shot at the officers." The district court ruled that, as a result, the protective sweep was justified.
Given the testimony presented at the suppression hearing, Silva's criminal history, his gang affiliation, and the officers' concern that someone might have been inside the trailer with a weapon, the district court did not clearly err in concluding that the officers were reasonably concerned about their safety. When we view the evidence in the light most favorable to the government, we are convinced that there were "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."
2. Did the Search Exceed the Scope of a Lawful Protective Sweep?
In the absence of a search warrant, a protective sweep must be "quick and limited" and "narrowly confined to a cursory visual inspection of those places in which a person might be hiding."
Lujan testified that he spent about five to ten seconds in the trailer, and Tamez testified that he spent about 35 to 40 seconds in the trailer. Silva presented no evidence to contradict this testimony. Lujan testified that he inspected every crawl space in which an individual could hide. He removed cushions from two benches, looked under the mattress of a fold-out couch, and checked inside cabinets. Tamez found the firearm, ammunition, and body armor after he saw a large, "waterbed-type mattress on top of wood, box [sic] underneath." He testified that he believed the wooden box under the mattress was hollow and large enough for a person to hide inside, as it was "about seven, eight feet in length, maybe six feet wide" and "[a]bout a foot and a half tall." He testified that nothing prevented him from lifting the mattress or the plywood cover and that there was no locking mechanism on the wooden box.
The district court concluded that, based on the agents' testimony regarding their experience finding individuals in small and hollowed-out spaces, Tamez's lifting of the mattress "was certainly justified" because it was possible that a person could hide in the wooden compartment underneath it. Lujan, who testified that he has conducted hundreds of protective sweeps for more than 13 years, described the "very unique" hiding places in which he has discovered individuals: "I have located individuals in hollowed-out water heaters, false walls, false compartments in floor[s], false appliances, inside dryers, inside washers, underneath sinks, underneath benches, underneath clothing, closets. Anywhere where a person really wants to hide he could actually make himself hide." Tamez similarly testified that he has located individuals in "[d]ressers, hollowed-out dressers, hidden compartments in closets, underneath clothes, just a lot of places." Lujan also testified that he limits his protective sweeps to "areas that would be able to conceal a person."
Silva has failed to demonstrate that the district court clearly erred in determining that the compartment under the mattress was large enough to conceal a person, a conclusion that is amply supported by the uncontroverted evidence in the record. In light of Lujan's testimony regarding his experience locating individuals in "very unique" places and Tamez's unrefuted testimony that he believed that a person could have been hiding in the wooden compartment under the mattress, the search of the trailer, including the wooden box under the mattress, did not exceed the scope of a lawful protective sweep.
B. Acceptance of Responsibility
Silva received a two-level reduction under USSG § 3E1.1(a), but he contends that the district court erred in denying him a third reduction of one level for acceptance of responsibility under § 3E1.1(b). He maintains that the government improperly withheld a § 3E1.1(b) motion in retaliation for his exercise of his constitutional rights to file a motion to suppress and to request a hearing on it.
We review a district court's legal interpretations of the Sentencing Guidelines de novo and its factual findings for clear error.
Section 3E1.1(b) provides for an additional one-level decrease to a defendant's base offense level for acceptance of responsibility if the following are satisfied:
Amendment 775 to the Sentencing Guidelines, which became effective in November 2013, states that "[t]he government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal."
Before Amendment 775 took effect, panels of this court routinely affirmed the denial of a one-level reduction under § 3E1.1(b) when the government had to prepare for a suppression hearing.
We need not determine as a general matter whether, in light of Amendment 775, the government may withhold a § 3E1.1(b) motion when, as here, the defendant files and litigates a motion to suppress. This is because Silva's motion precluded the government and the sentencing court from "allocat[ing] their resources efficiently," a concern central to § 3E1.1.
At Silva's sentencing hearing, the government opposed his request for a § 3E1.1(b) reduction because, it contended, "the entire basis [of] and all the allegations contained in the motion to suppress were falsified." The government noted that Silva's attorney had even presented a photograph of a compartment with a lock on it to support its motion. Silva's attorney did not contest that he had shown photographs indicating that the compartment at issue was locked, but he stated only that "those photos were never actually introduced into evidence" and that Silva's family provided him with those photos.
Because Silva's motion was based on the false claim that the compartment was locked, the district court did not err in denying Silva's request for an additional reduction under § 3E1.1(b).
The denial of Silva's motion to suppress and the sentence imposed following his guilty plea are AFFIRMED.