USA v. Lee Garcia

Filing 511079916

Case: 09-40575

Document: 00511079916

Page: 1

Date Filed: 04/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40575 April 14, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e , v ersu s L E E ROY GARCIA, D e f e n d a n t -A p p e l la n t .

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e GARWOOD, SMITH, and CLEMENT, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:

L e e Garcia was convicted, following a bench trial, of possessing with intent t o distribute more than five kilograms of cocaine. On appeal, he challenges the d e n ia l of his motion to suppress the cocaine that officers found secreted inside s te r e o speakers in the cab of his truck. He also appeals his sentence, noting a d is c r e p a n c y between the oral pronouncement and the written judgment. We a ffir m the conviction, which followed the denial of a motion to suppress. We va-

Case: 09-40575

Document: 00511079916

Page: 2

Date Filed: 04/14/2010

No. 09-40575 c a t e the sentence in the written judgment and remand for re-sentencing and for t h e correction of a clerical error.

I. T e x a s Department of Public Safety ("DPS") officers searched Garcia's comm e r c ia l truck while performing inspections at a weigh station. Garcia first c a u g h t the officers' attention because he appeared overly friendly and cooperat iv e when told he had been selected for a more thorough `level two' inspection. A c c o rd i n g to one of the officers who later testified, most drivers are frustrated b y the delays caused by level two inspections. While inspecting Garcia's paperwork, the officers noticed some items that g a v e them cause for concern. They learned, based on Garcia's logbook and by q u e s tio n in g him, that on the previous day he had picked up a load of tomatoes b u t had immediately parked his truck and did not begin to transport the shipm e n t until eighteen hours later. According to the officers, that behavior was abn o r m a l, because Garcia would have been forced to run his refrigerated truck all n ig h t to keep the tomatoes at the appropriate temperature, which is costly, and b e c a u s e drivers generally want to deliver perishable goods as quickly as possible. G a r c ia had no explanation for the delay. The logbook revealed that Garcia had recently taken multiple days off, e v e n though he reported that truck driving was his primary source of income. T h e officers found that suspicious, because generally drivers do not take off large a m o u n ts of time unless there is a reason; Garcia offered none. He also said he w a s delivering the tomatoes to New Jersey and New York, but his bill of lading r e v e a le d that he was scheduled to make a delivery only in New Jersey. When q u e s t io n e d about his odd behavior and the inconsistencies, Garcia showed signs o f nervousness, including shaking his knee, looking down, and attempting to talk to another truck driver. 2

Case: 09-40575

Document: 00511079916

Page: 3

Date Filed: 04/14/2010

No. 09-40575 O n e of the officers then asked Garcia whether the truck contained "anyt h in g illegal." Garcia responded that it did not and gave the officers permission t o search the truck and trailer. While searching the cab, the officers noticed fr e s h tool marks on the screws securing the stereo speakers, suggesting that the s cr e w s had been recently removed. The officers also found a toolkit in the cab c o n t a in in g a screwdriver bit that fit the screws. Using that screwdriver, they r e m o v e d the screws, took the speaker cover off, and found bundles containing n e a r ly 30 kilograms of cocaine inside the void behind the cover. Garcia was arre ste d and charged with violating 21 U.S.C. § 841(a)(1) and (b)(1)(A).1 G a rcia moved to suppress the cocaine on the grounds that neither probable c a u se nor voluntary consent supported the search and that even if he did cons e n t , the search exceeded the scope of consent. The district court denied the mot io n . The court first found that Garcia consented to the search of the truck and t r a ile r and that the consent was voluntary. The court then considered whether t h e search exceeded the scope authorized by Garcia. After considering all the fa ct o r s known to the officers at the time they started the execution of the search, t h e court determined that the search was within the scope. I m m e d i a t e ly following the suppression hearing, the court held a bench t r ia l and found Garcia guilty. The court orally pronounced a 120-month sent e n c e . The written judgment, however, shows a 121-month sentence.

II. G a r c ia contends that by removing the cover from the speakers, the officers e x ce e d e d the scope of his consent and that the district court thus erred in deny-

Section 841(a)(1) and (b)(1)(A) makes it unlawful knowingly or intentionally to "possess with intent to . . . distribute . . . a controlled substance . . . . In the case of a violation . . . involving . . . 5 kilograms or more of . . . cocaine . . . such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life."

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Case: 09-40575

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No. 09-40575 in g the motion to suppress. We review the denial of a motion to suppress in the lig h t most favorable to the prevailing party, here the government. United States v . Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003). Factual findings are r e v ie w e d for clear error, and legal conclusions are reviewed de novo. Id. The s c o p e of consent to search is a question of law. Id. T h e Fourth Amendment proscribes unreasonable searches and seizures. A search not based on a warrant may still be reasonable if based on probable c a u s e or, as here, consent. Id. (citing United States v. Ross, 456 U.S. 798, 809 (1 9 8 2 ); Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). When conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by the consent. Mendoza-Gonzalez, 318 F .3 d at 666-67. The scope of consent is determined by objective reasonableness S S w h a t a reasonable person would have understood from the exchange between t h e officer and searched partySSand not the subjective intent of the parties. F l o r id a v. Jimeno, 500 U.S. 248, 251 (1991); Mendoza-Gonzalez, 318 F.3d at 667. T h e scope of a consensual search may be limited by the expressed object o f the search. Jimeno, 500 U.S. at 251. But where, as here, an officer does not e x p r e s s the object of the search, the searched party, who knows the contents of t h e vehicle, has the responsibility explicitly to limit the scope of the search. M e n d o z a - G o n z a le z , 318 U.S. at 667. Otherwise, an affirmative response to a g e n e r a l request is evidence of general consent to search. Id. Garcia did not q u a lify his consent to the officers, who therefore had general consent to search t h e truck. G e n e r a l consent to search a vehicle does not, however, give an officer carte b la n c h e over the vehicle. Id. at 669. A search must still be reasonable, given the t o t a l it y of the circumstances. Id. The search here was reasonable. When the o ffic e r s requested permission to search the truck after asking Garcia whether he w a s carrying "anything illegal," it was natural to conclude that they might look 4

Case: 09-40575

Document: 00511079916

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Date Filed: 04/14/2010

No. 09-40575 fo r hidden compartments or containers. T h is case is similar to Mendoza-Gonzalez and United States v. Crain, 33 F .3 d 480 (5th Cir. 1994). In both, officers searched vehicles pursuant to general c o n s e n t. In Mendoza-Gonzalez, an officer cut open a taped box in the trailer of a commercial truck and discovered bricks of marihuana. In Crain, an officer o p e n e d a twisted and rolled up paper bag found under the driver's seat of a car c o n ta in in g crack cocaine base. On de novo review, we found both searches reas o n a b le . Similarly, in United States v. Flores, 63 F.3d 1342 (5th Cir. 1995), on p l a in error review, we upheld the denial of a motion to suppress a stash of cash d i s c o v e r e d when, pursuant to a signed, written general consent to search a car, in c lu d in g its containers and contents, officers removed interior panels from a car. M o r e o v e r , this case is unlike United States v. Ibarra, 965 F.2d 1354 (5th C i r . 1992) (en banc) (per curiam) (affirming by equally divided court), which uph e ld the suppression of items discovered after police smashed through floorb o a r d s with a sledgehammer to reach the sealed-off attic in a house.2 One-half o f our court would have held that such "structural demolition" was unreasonable a n d thus outside the scope of consent. Id. at 1357. Here, however, there was no a n a lo g o u s structural demolition; in transporting the cocaine, Garcia knew the s p e a k e r cover was easy to unscrew and replace without damaging the cab.3

Decisions by an equally divided en banc court are not binding precedent but only affirm the judgment by operation of law. Mendoza-Gonzalez, 318 F.3d at 667 n.5; United States v. Knutson, 113 F.3d 27, 28 nn.1, 6 (5th Cir. 1997). See also United States v. Dominguez, No. 96-40367, 1996 WL 731574 (5th Cir. Dec. 3, 1996) (unpublished) (reasoning that unscrewing a sheet rock panel from a house ceiling to reveal a hidden crawl space, causing no property damage, was reasonable and thus within the scope of general consent to search the house); United States v. Ferrer-Montoya, 483 F.3d 565, 568-69 (8th Cir. 2007); United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004); United States v. Ramstad, 308 F.3d 1139, 1146-47 (10th Cir. 2002); United States v. Zapata, 180 F.3d 1237, 1243 (11th Cir. 1999); United States v. Torres, 32 F.3d 225, 231-32 (7th Cir. (continued...)
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Case: 09-40575

Document: 00511079916

Page: 6

Date Filed: 04/14/2010

No. 09-40575 I n sum, the search of Garcia's truck cab was reasonable. The district court d i d not clearly err in denying the motion to suppress.

III. G a r c ia observes that there is a conflict between the prison term orally pron o u n c e d at the sentencing hearing and the term memorialized in the written ju d g m e n t, and the government agrees. The statutory minimum is 10 years (120 m o n t h s . The guideline imprisonment range is 121-151 months. At oral sentencin g , however, the court misstated the guideline range as 120-151 months. App a r e n t ly on the basis of that confusion, the court went on to explain that "I belie v e that a sentence at the lowest end of the advisory guideline range would be a reasonable sentence. Therefore I am going to sentence you to 120 months." T h e later, written judgment, however, showed a 121-month sentence. Where the orally-imposed sentence conflicts with the written judgment, t h e oral pronouncement controls. United States v. Bigelow, 462 F.3d 378, 381 (5 t h Cir. 2006). Generally, we remand and direct the court to amend the written ju d g m e n t to conform to the oral pronouncement. See United States v. Martinez, 2 5 0 F.3d 941, 942 (5th Cir. 2001). If, however, there is merely an ambiguity bet w e e n the oral and written sentences, we review the entire record to determine th e court's intent. Id. The oral pronouncement, read as a whole, shows that there is an ambiguit y rather than a conflict. Although the court said it was imposing a 120-month s e n te n c e , it also stated that it wished to give a sentence at the "lowest end" of t h e guidelines range. The bottom of the guideline range was 121 monthsSSthe s e n te n c e reflected in the written judgment. Examining the record to determine the court's intent, see United States v.
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Case: 09-40575

Document: 00511079916

Page: 7

Date Filed: 04/14/2010

No. 09-40575 E n g lis h , 400 F.3d 273, 276 (5th Cir. 2005), does not resolve the ambiguity. The c o u r t did not plainly articulate the correct guideline range, and it is not certain, fr o m the discussion, whether the court believed a 120-month sentence more app r o p r ia t e than a within-guideline sentence. Given the discrepancy between the w r it t e n judgment and the oral pronouncement, as well as the ambiguities in the o r a l explanation, we vacate the sentence and remand for resentencing. See Unite d States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006).

IV . T h e r e is also a clerical error. Garcia pleaded not guilty, and his guilt was d e t e r m in e d by the court after a bench trial, but the judgment erroneously states t h a t he pleaded guilty. On remand, the district court must correct the error. F ED. R. CRIM. P. 36; United States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003). I n summary, the conviction is AFFIRMED. The sentence is VACATED a n d REMANDED for resentencing..

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