United States v. Noriega

35 F.4th 643

UNITED STATES of America Plaintiff - Appellee

v.Felipe NORIEGA, Jr., Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Edgar Javier Alcantar Cuevas, also known as Edgar Alcantar, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Robert Alan McCleary, also known as Robert McCleary, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Miguel Angel Alcantar Mercado, also known as Miguel Alcantar, Defendant - Appellant

No. 21-1211

No. 21-1324

No. 21-1419

No. 21-1421

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2022

Filed: May 26, 2022

Counsel who represented the appellant in 21-1211 was Erin M. Carr of Des Moines, IA. Counsel who represented the appellant in 21-1324 was Joseph Gilbert Bertogli of Des Moines, IA. Counsel who represented the appellant in 21-1419 was Frederic Montgomery Brown of West Des Moines, IA. Counsel who represented the appellant in 21-1421 was Chad R. Frese of Marshalltown, IA.

Counsel who represented the appellee was Amy L Jennings, AUSA, of Des Moines, IA.

Before BENTON, SHEPHERD, and STRAS, Circuit Judges.

SHEPHERD, Circuit Judge.

Appellants Felipe Noriega, Jr., Edgar Javier Alcantar Cuevas, Robert Alan McCleary, and Miguel Angel Alcantar Mercado, along with others not currently before this Court, were charged by superseding indictment with conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). McCleary was also charged with distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(a). Appellants pled guilty to conspiracy to distribute a controlled substance, with the government agreeing to dismiss the distribution of a controlled substance charge against McCleary in exchange for his guilty plea. At sentencing, the district court¹ varied downward, sentencing each appellant to a term below the United States Sentencing Guidelines (Guidelines) range. Noriega, Alcantar Cuevas, McCleary, and Alcantar Mercado were sentenced to 72, 60, 180, and 204 months imprisonment, respectively. They now challenge their sentences, with Noriega additionally arguing that the district court erroneously denied his motion to suppress evidence obtained as a result of the traffic stop of his vehicle, an appeal right that he preserved in his plea agreement. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court.

I.

The facts, as set forth in the unobjected-to portions of appellants’ Presentence Investigation Reports (PSR) prepared by the United States Probation Office, reveal that appellants were part of a methamphetamine distribution conspiracy in which methamphetamine, sourced from Mexico, was distributed in Minnesota and Iowa. Appellants’ roles were as follows. Alcantar Cuevas, a cousin of the supply source, received a shipment of ten pounds of methamphetamine from McCleary and, at the supply source's direction, delivered that methamphetamine to a customer. Alcantar Cuevas also collected drug proceeds and wired those proceeds, a total of approximately $8,740, to five different recipients in Mexico. The district court attributed a total of 10 pounds, or 4,536 grams, of a methamphetamine mixture to him.² McCleary worked as a drug distributor in the conspiracy, delivering the ten pounds of methamphetamine to Alcantar Cuevas and later delivering an additional ten pounds of methamphetamine to a co-conspirator not currently before this Court who, unbeknownst to McCleary, was cooperating with law enforcement. An undercover law enforcement officer also participated in this second transaction. The district court attributed a total of 20 pounds, or 9,072 grams, of actual or ice methamphetamine to McCleary. Alcantar Mercado, like Alcantar Cuevas, is a cousin of the supply source. Alcantar Mercado collected drug debts for the supply source and wired over $40,000 in drug proceeds from the United States to 22 individuals in Mexico. The district court attributed a total of 5,175.58 grams of actual or ice methamphetamine to him.³

Finally, Noriega acted as a delivery driver for the conspiracy, transporting methamphetamine to Iowa. The district court attributed 22 pounds, or 9,620 grams, of actual or ice methamphetamine to Noriega that originated from a November 15, 2019, traffic stop.⁴ While Noriega was traveling through Colorado, Officer Michael Miller of the Mesa County Sheriff's Department stopped Noriega after observing him traveling in the left-hand lane, a violation of Colorado law. See Colo. Rev. Stat. § 42-4-1005(1). Officer Miller later testified about this traffic stop, as did Special Agent Shane Gosnell of the Department of Homeland Security, who arrived after the stop was already in progress to assist Officer Miller. Upon Special Agent Gosnell's arrival, he took a "cover" position at the front passenger side of Officer Miller's patrol vehicle, which was parked behind Noriega's vehicle.

After stopping Noriega, Officer Miller approached Noriega's front passenger-side window and smelled an overwhelming "perfume-type odor" emanating from Noriega's front and rear passenger-side windows. When Noriega handed Officer Miller his driver's license, registration, and proof of insurance, Officer Miller observed that Noriega's hand was "trembling" and his face was "twitching." Officer Miller noticed that Noriega had a Nevada driver's license and license plate and a Las Vegas, Nevada address. Officer Miller testified that Las Vegas is a "transshipment center[ ]," i.e., a location where large quantities of narcotics are shipped to and then trafficked to states further inland.

Officer Miller testified that when asked about his travel plans, Noriega said that he was traveling to his brother's house for "maybe the weekend" despite not knowing his brother's address or how to find his brother. Officer Miller explained that Noriega appeared to be uncomfortable answering questions about his travel plans and repeatedly attempted to divert the conversation to other topics. Similarly, Special Agent Gosnell explained that when Officer Miller returned to his patrol vehicle to run Noriega's driver's license, registration, and proof of insurance, he mentioned that Noriega was "overly nervous," was providing "vague and implausible travel plans," and a "strong perfume-like odor [was] coming from the vehicle."

Seeing that Noriega's license was valid and there were no outstanding warrants for him, Officer Miller returned to Noriega's front passenger-side window. Officer Miller testified that, at this time, he noticed that the "perfume" scent had dissipated. Officer Miller returned Noriega's driver's license, registration, and proof of insurance and told him that he was "good to go." Noriega thanked Officer Miller and put his vehicle into gear.

However, before Noriega pulled away, Officer Miller asked Noriega if he was carrying any narcotics. Noriega said no, so Officer Miller asked to search Noriega's vehicle. Noriega expressed his confusion, telling Officer Miller that he thought that he was free to go. This exchange continued, with Noriega asking if he was required to consent to a search and Officer Miller telling Noriega that he had a drug dog in his patrol vehicle. Eventually, Officer Miller directed Special Agent Gosnell to remove the drug dog from the patrol vehicle. Officer Miller testified that upon seeing the dog, Noriega agreed to a dog sniff around the perimeter of his vehicle. Officer Miller testified that Noriega asked to exit the vehicle prior to the dog sniff, which Officer Miller allowed, and according to Officer Miller's testimony, upon Noriega's exit, Noriega's legs were visibly "shaking." The dog alerted Officer Miller to the driver-side lower rear door seam. Officer Miller testified that he asked Noriega if he could search the interior of Noriega's vehicle and Noriega agreed.

The search of Noriega's vehicle revealed 22 packages containing a total of 22 pounds of actual or ice methamphetamine. Noriega explained that he had been hired to deliver methamphetamine to Des Moines, Iowa, and was to be paid $400 per pound of methamphetamine transported. Officer Miller detained Noriega, and Noriega was then transported to Iowa. In a post- Miranda ⁵ interview, Noriega consented to a search of his phone, and on the phone, investigators found photographs of receipts for wire transfers that Noriega had received as payment for his transport of the methamphetamine. While searching Noriega's phone, investigators also saw that one of Noriega's "handlers" had sent Noriega an address to which Noriega was to deliver the methamphetamine. That address belonged to one of Noriega's co-conspirators not currently before this Court.

Noriega later filed a motion to suppress the methamphetamine found pursuant to the stop and search of his vehicle, along with any other evidence derived from that stop, including his subsequent admissions. In this motion, Noriega argued that suppression was appropriate because Officer Miller did not have reasonable suspicion to justify the extension of the traffic stop—a violation of Noriega's Fourth Amendment rights—and evidence recovered subsequent to the illegal search was fruit of the poisonous tree.

The district court held a suppression hearing and received testimony from both Officer Miller and Special Agent Gosnell. Officer Miller testified about his experience and training, explaining that he had been an officer with the Mesa County Sheriff's Department since 1992 and had worked in a patrol or drug interdiction capacity for the Western Colorado Drug Task Force since 1999. Officer Miller estimated that he has completed over 1,000 hours of drug interdiction training and has conducted thousands of traffic stops, during which he has seized thousands of pounds of narcotics, including methamphetamine. Officer Miller also acknowledged that he has been recognized on local, state, and national levels for his drug interdiction work.

The district court ultimately denied...