APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. NO. 2:10-CR-02387-WJ-1).
Caren I. Friedman, Santa Fe, New Mexico, for Defendant - Appellant.
Laura Fashing, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff -Appellee.
Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
HARTZ, Circuit Judge.
Defendant Edwin Sanchez appeals his conviction in the United States District Court for the District of New Mexico on one count of possession with intent to distribute 100 kilograms or more of marijuana, see 21 U.S.C. § 841(b)(1)(B)(vii), and his sentence of 78 months' imprisonment. The marijuana was found in a shed behind Defendant's home and in a detached garage on the property. The affidavit for the warrant to search the home made no mention of Defendant, who had not been implicated in the drug-conspiracy investigation leading to the search. The home was searched on the mistaken belief that it was the residence of an identified member of the conspiracy—Defendant's daughter. At trial the government tied Defendant to drug trafficking by providing telephone records showing many phone calls between Defendant and a drug trafficker.
Defendant argues that (1) factual errors in the search-warrant affidavit required suppression of the evidence obtained in the search; (2) the telephone records should not have been admitted as evidence because they were unfairly prejudicial; (3) the district court erred by denying him a minor-role sentencing adjustment; (4) the court's finding that he gave perjured testimony during trial was not sufficiently independent of the jury's verdict to support a sentence enhancement for obstruction of justice; and (5) his sentence is substantively unreasonable.
We hold that (1) the errors in the affidavit do not undermine the magistrate judge's finding of probable cause; (2) the phone-record evidence was relevant, and its relevance was not substantially outweighed by the danger of unfair prejudice; (3) the district court reasonably found that Defendant had not proved that his role in the offense was minor; (4) the court's factual findings supported its imposition of the obstruction adjustment; and (5) Defendant's within-guidelines sentence was substantively reasonable. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We summarize the relevant evidence as we discuss each issue in turn.
I. VALIDITY OF SEARCH WARRANT
In June 2010 officers of the federal Drug Enforcement Administration (DEA) obtained a warrant to search 4113 Barbara Vista in Albuquerque for documents relating to a drug-trafficking organization and for proceeds from the trafficking. The affidavit supporting the warrant linked Defendant's daughter, Adriana Amaya, to drug trafficking. It recounted intercepted conversations among members of the drug conspiracy setting up meetings with Amaya and referring (in code) to currency that Amaya was to pass along for delivery to a drug supplier in Mexico. Amaya herself participated in some conversations, arranging meetings and, at least once, referring to money she was going to bring to a meeting. On one occasion a conspirator gave Amaya's cell-phone number to another conspirator, who promptly called Amaya. The phone company's records showed that the number was subscribed in Amaya's name with a listed address of 4113 Barbara Vista. The affidavit further stated that DEA officers had determined that 4113 Barbara Vista was Amaya's residence "[b]ased on information received throughout this investigation from state and local databases." R., Vol. 1 at 150.
Some statements in the affidavit were undisputably wrong. The most significant error was the statement that "[t]hroughout the course of this investigation, agents have conducted physical surveillance, video surveillance and have spoken to some participants in order to confirm the owner or resident of each residence." Id. at 149–50. At the suppression hearing in district court, the DEA agent who prepared the warrant application conceded that no video surveillance of 4113 Barbara Vista had been conducted and that physical surveillance had not confirmed that Amaya either resided at or owned the residence because Amaya had never been seen there. The affidavit also stated that agents saw "several video cameras strategically affixed to the residence, " and that "[t]he residence is surrounded on the west side by an 8 foot cinderblock fence that wraps around the north side of the residence concealing it from public view." Id. at 150–51. The affidavit suggested that these security measures showed that the residence was equipped as a "fortress" suitable for "protect[ing] either narcotics and/or bulk currency." Id. at 151. When officers executed the warrant, however, they found only one camera affixed to the residence; and the cinderblock fence turned out to be only five or six feet high. They also discovered that Amaya did not live at 4113 Barbara Vista, but her father, Defendant, did.
The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause." U.S. Const. amend. IV. "Probable cause to issue a search warrant exists when the supporting affidavit sets forth sufficient facts that would lead a prudent person to believe that a search of the described premises would uncover contraband or evidence of a crime." United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009) (brackets, ellipsis, and internal quotation marks omitted). "We afford great deference to the issuing magistrate's probable-cause determination unless there is no substantial basis for concluding that probable cause existed." Id. (ellipsis and internal quotation marks omitted).
Defendant argues that probable cause to search his house was not set forth in the affidavit for the warrant. He first contends that "[i]t is important to remember that when the Government submitted the warrant application for the search of Defendant's home, it had no information at all concerning him." Aplt. Br. at 27. True, but irrelevant. It is undisputed that Defendant had not been a target of the DEA investigation and that the application to search 4113 Barbara Vista was premised on the belief that Amaya, who was one of the targets of the investigation, resided there. Although this belief turned out to be erroneous, probable cause is not certainty, and there is no constitutional requirement that evidence acquired in a search be used only against persons suspected of wrongdoing when the search was initiated.
A more substantial objection to the search is that the affidavit contained "patently false information." Id. Defendant contends that "nothing could cure the defect of false and ...