United States v. Timmer

                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 05a0972n.06
                               Filed: December 14, 2005

                                      Nos. 04-1697/04-1754

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                  ON APPEAL FROM THE UNITED
v.                                                STATES DISTRICT COURT FOR THE
                                                  WESTERN DISTRICT OF MICHIGAN
and

HORACIO RODRIGUEZ-RUIZ, and
HUBERT ALLEN TIMMER,

       Defendants-Appellants.


Before: SILER and CLAY, Circuit Judges; and CARR, District Judge.*

       JAMES G. CARR, DISTRICT JUDGE. These are appeals from the Defendants’

convictions and sentences for conspiracy to distribute marijuana.

       The Defendants were two of six persons charged with conspiracy under 21 U.S.C. §§

841(a)(1), 846, to distribute more than 100 pounds of marijuana. Timmer stood trial and was found

guilty. Rodriguez-Ruiz pled guilty.

       Prior to trial Timmer moved to suppress evidence found at the home he shared with a

girlfriend, Angela Betcher. The district court overruled his motion.

       At Timmer’s sentencing, the court imposed a two-level enhancement for possession of a



       *
               The Honorable James G. Carr, Chief Judge of the Northern District of Ohio, sitting
by designation.
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dangerous weapon under § 2D1.1(b)(1) of the Sentencing Guidelines.



       At his sentencing, Rodriguez-Ruiz sought, but did not receive, a two-level “safety valve”

downward adjustment pursuant to Guidelines § 2D1.1(b)(6).

       Defendant Timmer appeals the denial of a motion to dismiss and his sentence. Defendant

Rodriguez-Ruiz appeals his sentence.

       For the reasons that follow, we AFFIRM Timmer’s conviction and REVERSE AND

REMAND as to his sentence. We AFFIRM the sentence imposed on Rodriguez-Ruiz.

                                           Background

                                            I. Timmer

       On May 13, 2003, at about 8:45 p.m., three police officers, acting on a tip that the Defendant

had received a fifty-pound shipment of marijuana earlier that day, went to the trailer home in

Lansing, Michigan, shared by Timmer and Ms. Betcher. Though the facts of the encounter between

the officers and Ms. Betcher were disputed, the district court found the officers’ testimony more

credible than that of Ms. Betcher.

       When the officers arrived, Ms. Betcher was home alone and on the telephone. Ms. Betcher

came to the front door, which was open. An Officer Lynde identified herself as a police officer, told

Ms. Betcher that she needed to talk with her, and asked to talk inside so the neighbors would not be

involved.

       Ms. Betcher ended the phone conversation, put the phone down, and opened the screen door,

admitting the officers.

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       While standing in the doorway, Officer Lynde asked Ms. Betcher if the Defendant lived

there. Advised that he did, Officer Lynde told Ms. Betcher of the tip about his receiving fifty

pounds of marijuana earlier in the day. Officer Lynde asked if there was any marijuana in the trailer;

Ms. Betcher said there was not a large quantity in the residence.

       Officer Lynde interpreted this response to mean that there was some marijuana on the

premises. She asked Ms. Betcher several times for permission to search, telling Ms. Betcher they

could do this the easy way [by getting consent] or the hard way [by getting a search warrant].

       Ms. Betcher repeatedly told the officers she could not consent to a search; she mentioned that

the trailer belonged to Timmer.

       After this colloquy had lasted about five minutes, Officer Lynde and another officer left to

obtain a search warrant. Because the officers believed that there may have been some marijuana in

the trailer, the third officer remained behind and sat on a couch in the trailer.

       Within thirty seconds after Officer Lynde and the other officer had left the trailer, Ms.

Betcher called to them. The officers returned, and, as they re-entered the trailer, Ms. Betcher told

them they could search it. She also stated that she wanted the officers gone by the time her daughter

arrived home.

       Ms. Betcher then led the officers to the bedroom. She showed them a small quantity of

marijuana in a dresser drawer. She told the officers that the marijuana in the dresser was the only

marijuana on the premises of which she was aware. She also allowed the officers to continue

searching.

       While the two other officers were continuing the search of the trailer, Officer Lynde gave

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a consent form to Ms. Betcher and told her to read it. Ms. Betcher took a few seconds to look at the

form and signed it.

       The officers did not threaten Ms. Betcher: they did not display their handcuffs, and they did

not tell Ms. Betcher that she would be arrested or that her five-year old daughter would be taken if

she did not consent to a search.

       The Defendant arrived home while the officers were still there. He was arrested. At some

point, Ms. Betcher’s mother had also arrived. She yelled at her daughter, who became emotional

and upset and cried. Ms. Betcher quickly calmed down.

       During the search, the officers found and seized $13,000 (discovered in a shoebox), some

marijuana (though substantially less than the fifty pounds mentioned in the tip that brought the

officer’s to the Defendant’s residence), and a scale. In addition, officers found an unloaded handgun

between the mattress and box spring of the bed. They did not find any ammunition for the firearm.

       At sentencing, the Defendant’s sister testified that the Defendant, intending to engage in

target practice, had bought the firearm long before his involvement in the conspiracy. Ms. Betcher

concurred in that testimony, and testified that she had placed the weapon between the mattress and

box spring.

       There was no evidence that the Defendant had ever carried or displayed the gun while

getting, keeping, or distributing illegal drugs. Nonetheless, the district court found that the

Defendant had possessed the weapon in conjunction with his drug trafficking. On that basis, the

judge enhanced the Defendant’s base offense level for purposes of computing his Guideline range.

                                          2. Rodriguez-Ruiz

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       At his sentencing, Defendant Rodriguez-Ruiz asked for a two level downward adjustment

for “safety valve” compliance under Guideline § 2D1.1(b)(6) and release from the minimum

mandatory sentence under § 5C1.2(a)(1)-(5).

       The judge denied the request on the basis, as reported in the presentence report, that the

Defendant had not truthfully provided all information and evidence concerning the offense or

offenses that were part of his criminal conduct. Absent satisfaction of this precondition, the

Defendant was not entitled to safety valve treatment and relief.

       In response to the statement in the presentence report, the Defendant’s attorney argued that

a meeting during the trial between him, the Defendant, and the prosecutor had satisfied the

Defendant’s obligation to provide information to the government, so that he qualified for safety

valve treatment. The meeting, according to the Defendant’s attorney, was to “discuss what [the

Defendant’s] testimony would be in an attempt to decide whether or not he would be called by the

government or whether he would qualify for safety valve.” (J.A. at 33).

       The government was interested in the Defendant’s possible testimony against a co-

Defendant, Sifuentes. At the meeting, Rodriguez-Ruiz, however, had “indicated that Mr. Sifuentes

was not involved in any way and that he merely accompanied him to the restaurant as a companion,

but was not involved in the conspiracy.” (Id. at 34).

       According to the prosecutor, the meeting lasted about fifteen to twenty minutes. (Id. at 35).

He was emphatic that the purpose of the meeting had only been to determine whether the Defendant

would testify against Sifuentes. Elaborating, the prosecutor stated:

       It was not a safety valve meeting. We did not do a full debriefing. In fact, we didn’t

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       take notes, and we didn’t have any reports made. We didn’t go over the conspiracy
       from beginning to end, what Mr. Ruiz’ involvement was, who else he was dealing
       with, how he was dealing with Krueger, or anything else. We were there focused in
       the middle of a trial, during a break, solely on the issue of what was Mr. Sifuentes’
       involvement, and would the defendant be willing to testify against him.
               I believe either later that day or maybe the next morning – I’m not exactly
       sure, but very shortly within 24 hours, we were back in chambers. And you asked
       me point blank what was the situation with Mr. Ruiz. And I told you then that he
       was not being truthful. He was not cooperating. And that was the end of it. I was
       not going to call him as a witness.

                                            Discussion

                                            1. Timmer

                                      A. Motion to Suppress

       Timmer challenges the admission of evidence seized from the residence he shared with Ms.

Betcher. We review the district court’s factual determinations on a clearly erroneous standard, and

its legal conclusions de novo. United States v. Couch 367 F.3d 557, 560 (6th Cir. ,2004).

       The government argues, and its argument is well-taken, that the approach taken by the

officers, colloquially known as “knock and talk,” is not constitutionally infirm. This Court has held

that a “knock and talk,” where officers arrive unannounced at a residence, knock on the door, and

ask to speak with someone, does not violate the Fourth Amendment. Ewolski v. City of Brusnwick,

287 F.3d 492, 504-05 (6th Cir. 2002).

       The district judge found that Ms. Betcher had authority to consent to a search by the officers,

had consented to the search, and her consent was uncoerced. We find no error in these findings.

       Ms. Betcher and the Defendant shared the trailer as their common home. She thus had

“mutual use of the property” and “joint access or control for most purposes.” United States v.



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Matlock, 415 U.S. 164, 171 n.7 (1974). Under such circumstances, the Supreme Court stated in

Matlock, “it is reasonable to recognize that any of the co-inhabitants has the right to permit the

inspection in his own right and that the others have assumed the risk that one of their number might

permit the common area to be searched.” Id. Thus, Ms. Betcher had the authority to consent to the

search.

          Her consent was voluntary. Ms. Betcher knew that she had the right to demand a warrant;

she referred to that right and refused to accede to the officers’ initial requests for permission to

search the trailer.

          There were considerable differences in the testimony, but the District Court resolved those

differences by finding the government’s witnesses to be more credible than Ms. Betcher. The record

suggests that the district judge’s determination was well-founded.

          The only question is whether Ms. Betcher’s consent was freely given or was coerced or

resulted from mere submission to authority. See generally United States v. Carter, 378 F.3d 584,588

(6th Cir. 2004) (en banc). The fact that the officers indicated that they would go for a warrant if

consent was not forthcoming does not necessarily imply that Ms. Betcher simply acquiesced to the

officers’ authority. See, e.g., United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998) (“It is

well-settled that the agent's statements to the effect that he would obtain a warrant if Salvo did not

consent to the search does not taint Salvo's consent to a search.”).

          The District Judge found that Ms. Betcher’s consent was voluntary. The record supports that

finding. Two officers left after Ms. Betcher refused to allow a search without a warrant. They did

nothing to prompt her to recall them and allow them to search the trailer. Her only condition was

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that the officers finish before her young daughter came home.

       Concern for her daughter, rather than coercion or submission, led to the consent to search.

The fact that consent results from such concern does not make it invalid, especially where, as here,

the officers did nothing to provoke or enhance such concern.

       Accordingly, we affirm the district court’s decision to deny the Defendant’s motion to

suppress.

                                            B. Sentence

       Timmer’s sentence was imposed prior to United States v. Booker, 543 U.S. ----, 125 S.Ct.

738, 160 L.Ed.2d 621 (2005), in which the Supreme Court held that, to avoid the unconstitutional

consequences of fact-finding by a judge, rather than a jury, with regard to facts that could enhance

a sentence under the Sentencing Guidelines, the Guidelines had to be deemed advisory.

       In light of Booker, we vacate Defendant’s sentence and remand his case for resentencing.

       We review factual findings impacting the Guidelines advisory sentence range on the

conventional clearly erroneous standard. United States v. Oliver, 397 F.3d 369, 374 (6th Cir. 2005).

       Here, police searched the Defendant’s home and found, among other things, a large amount

of marijuana, $13,000 in cash, and a pistol. The police found the firearm beneath a mattress in the

same room as the marijuana, cash, scales and other items.

        Because the police had found a gun on the premises, the government asked the District

Judge to impose a two-level sentence enhancement under Guideline § 2D1.1(b)(1), which applies

to drug offenses where the Defendant possessed a dangerous weapon. The judge heard testimony

on the issue, but did not submit it to a jury. At the hearing, the Defendant admitted that the gun was

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in his constructive possession, but argued that the enhancement should not apply because he had

bought the firearm for target practice and, in any event, it was clearly improbable that the gun was

connected to the offense. He did not raise an Apprendi, Blakely, or Booker argument at his

sentencing.

        The District Judge made a factual finding that the firearm was connected to the drug charge.

The judge imposed the two-level enhancement but sentenced the Defendant to 78 months, at the low

end of the applicable range. That sentence overlaps with the high end of the range applicable had

the judge not imposed the enhancement.

       It is immaterial that the Defendant may not have preserved his Booker challenge. We have

held, in light of Booker, that we will remand cases on direct appeal for resentencing where a

Booker error occurred at the sentencing, even if the error was not preserved. United States v. Davis,

397 F.3d 340 (6th Cir. 2005); see, e.g., United States v. Oliver, 397 F.3d 369 (6th Cir. 2005).

       The “remedy” majority opinion in Booker (holding that the Guidelines were advisory) did

not require that facts increasing the advisory guideline range be alleged in the indictment or proved

to a jury beyond a reasonable doubt. Justice Breyer’s opinion explicitly rejected the proposition

that a jury had to find sentencing facts: in his view, such requirement “would destroy the system.”

125 S.Ct. at 760.

       Under Booker, therefore, judges still find the facts pertinent to determining the Guideline

range. United States v. Harris, 397 F.3d 404, 416 (6th Cir. 2005). We have, moreover, continued

to permit such factual findings to be based on the preponderance of the evidence. See United States

v. Warwick, 2005 WL 2293478, *3 (6th Cir. Sep 20, 2005 (unpublished disposition) (holding that

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“[t]he Government bears the burden of proving by a preponderance of the evidence the existence

of a factor used to support a Guidelines-sentencing enhancement.”).1

            In United States v. Oliver, for example, we upheld the district court’s finding that the

Defendant’s flight from a halfway house constituted obstruction of justice, thus exposing him to an

enhanced sentence. 397 F.3d at 381-82. We remanded for “the district court to determine whether

such a sentencing enhancement ought to be applied now that the federal sentencing guidelines are

merely advisory.” Id. at 382 n.5.2

        We review factual findings impacting the Guidelines advisory sentence range on the

conventional clearly erroneous standard. United States v. Oliver, 397 F.3d at 374.

        Here, an ample factual basis supports the trial judge’s finding that the firearm was used in

connection with the Defendant’s drug offense. The weapon was found in the same room as several

items – drugs, a scale, and substantial cash – directly related to the drug offense. The proximity and

accessibility of the gun to these other drug-trafficking related items made it more likely than not that

the gun and drug trafficking were connected.

        We therefore affirm the district judge’s factual finding, but remand for the judge to


        1
                 The Fifth Circuit also has held that, because the Guidelines are now merely advisory,
judicial fact-finding with proof by a preponderance of the evidence passes constitutional muster.
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
        2
               The Fourth Circuit has held that district courts must still make factual findings when
determining the appropriate sentence. United States v. Gray, 405 F.3d 227, 244 n.10 (4th Cir. 2005).
The court stated that, on remand, a district court imposing a sentence must first determine the
appropriate sentence range according to the Guidelines by making factual findings appropriate for
that determination and then consider that sentencing range along with other factors described in 18
U.S.C. § 3553(a). Id.

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determine the appropriate sentence in light of the fact that the judge may – but need not – apply the

sentence enhancement because Booker rendered the Guidelines advisory.

                                          2. Rodriguez-Ruiz

       The Defendant claims that the district court erred when it declined to adjust his sentence on

the basis of the “safety valve” provision of Guidelines § 5C1.2. We review the factual basis for its

refusal to apply the safety valve provision on the basis of clear error. United States v. O’Dell, 247

F.3d 655, 674 (6th Cir. 2001); United States v. Adu, 82 F.3d 119, 124 (6th Cir. 1996).

       Defendants who meet all criteria for the safety valve adjustment can receive a sentence

beneath the mandatory minimum otherwise prescribed. 18 U.S.C. § 3553(f); USSG § 5C1.2. The

adjustment would be two levels downward. USSG § 2D1.1(b)(6).

       The Defendant met four of the qualifying criteria for safety valve treatment: he had no more

than one criminal history point, he did not use violence or threaten violence in committing his crime,

no one suffered death or serious bodily injury, and the Defendant was not an organizer, leader,

manager, or supervisor in the offense.

       The fifth criterion is, however, in dispute. That criterion requires that not later than the time

of the sentencing hearing, the Defendant truthfully provide to the Government all information and

evidence the Defendant has concerning the offense or offenses that were part of the same course of

conduct or of a common scheme or plan. The fact that the Defendant has no relevant or useful

information to provide or that the Government is already aware of the information does not preclude

a determination by the court that the Defendant has complied with this requirement. USSG §

5C1.2(a).

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       The Defendant has the burden of proving that he qualifies for the safety valve adjustment.

Adu, 82 F.3d at 123-24.

       To qualify for safety valve treatment under § 5C1.2, the Defendant must engage in an

“affirmative act” by “truthfully disclosing all the information” concerning the offenses. Id. at 124.

We have held that “[t]he defendant is required to provide complete information regarding not only

the offense of conviction, but also any relevant conduct, including disclosure of information

regarding the participation of other people in the offense.” United States v. Salgado, 250 F.3d 438,

459 (6th Cir. 2001); United States v. Cortez-Lopez, 59 Fed. Appx. 68, 69 (6th Cir. 2003).

       In Adu, we held that “[t]he defendant’s statement that he gave the government ‘all they

asked,’ if true, does not satisfy the burden of proof” for the safety valve provisions. 82 F.3d at 124.

 More specifically, we held that the district court had not committed clear error because the

defendant had “merely repeated what he had written to the probation officer” and “[t]he government

challenged the defendant’s claim.” Id. (holding that a district court’s decision is not clearly

erroneous “[w]here the government challenges a defendant’s claim of complete and timely

disclosure and the defendant does not produce evidence that demonstrates such disclosure”).

       Likewise, a defendant does not meet the fifth criterion for safety valve treatment where the

defendant “fails to give a full forthright account of his activities”. United States v. Sabir, 117 F.3d

750, 751 (3d Cir. 1997); see also Salgado, 250 F.3d at 460 (stating that defendant’s “abbreviated

statements” did not meet the fifth safety valve requirement that a defendant fully disclose

information about acts associated with the offense); United States v. Maduka, 104 F.3d 891, 894 (6th

Cir. 1997) (holding that information provided by defendant was not complete enough to satisfy the

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safety valve requirement because it failed to describe the involvement of others in the relevant

conduct); United States v. Scharon, 187 F.3d 17 (1st Cir. 1999) (holding that defendant must provide

information beyond facts related to the particular offense to satisfy safety valve requirements).

        Here, the Defendant failed to prove that he satisfied the fifth criterion of the safety valve test.

The meeting to which he refers was not, as the prosecutor correctly argued to the District Judge, a

safety valve meeting. Its purpose was to determine whether the Defendant could testify about the

involvement of one co-Defendant. That meeting did not cover, as required by the safety valve

provision “all information and evidence the defendant has concerning the offense or offenses that

were part of the same court of conduct.”

        The Defendant never met with the government to discuss the complete circumstances

surrounding his involvement in the drug trade. He never scheduled such an interview.                  The

Defendant here cannot satisfy the fifth criterion of the safety valve test by pointing to his brief

meeting with the government wherein all he did was deny that an alleged co-Defendant was

involved in the crimes. Other than that uneventful meeting, the government had no contact with the

Defendant.

        The district court had a sufficient basis for finding that the Defendant did not meet the fifth

criterion for the safety valve adjustment. There was no error, let alone clear error, in its decision

not to grant safety valve relief.

                                              Conclusion

        For the foregoing reasons, we AFFIRM Timmer’s conviction and the factual finding that

he possessed a firearm in connection with his drug offense, we REVERSE Timmer’s sentence and

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REMAND for further sentencing, and we AFFIRM the sentence imposed on Rodriguez-Ruiz.




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