from the United States District Court for the Western
District of Oklahoma. (D.C. No. 5:13-CR-00201-HE-1).
Autry of Oklahoma City, Oklahoma, for Defendant-Appellant.
Stoneman, Special Assistant U.S. Attorney (Sanford C. Coats,
United States Attorney, with him on the brief), of Lawton,
Oklahoma, for Plaintiff-Appellee.
LUCERO, SEYMOUR, and GORSUCH, Circuit Judges.
SEYMOUR, Circuit Judge.
the execution of a search warrant, Florentino Villanueva,
charged with one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The
district court denied his motion to suppress the firearm
seized during the search. Mr. Villanueva entered a
conditional plea of guilty pursuant to a written plea
agreement, reserving the right to appeal the denial of his
motion to suppress and any sentencing enhancement the
district court might impose under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(1). The district court
overruled Mr. Villanueva's objections at sentencing,
classified him as an armed career criminal, and sentenced him
to 210 months imprisonment. We affirm.
AND PROCEDURAL HISTORY
The Affidavit for Search Warrant
on information obtained during an investigation into on-going
methamphetamine trafficking, Agent Seth Thompson of the
Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD)
applied for and received a no-knock warrant to search a
residence in Lawton, Oklahoma. Agent Thompson asserted there
was probable cause to believe that Mr. Villanueva used the
residence to run a suspected methamphetamine drug conspiracy.
The residence " had belonged to Mr. Villaneuva's
deceased grandfather and was left to his two sons, one of
whom was Mr. Villaneuva's stepfather."
Aplt. Br. at 9. After laying out his training and experience
as a narcotics agent and explaining the common practices of
drug distributors and traffickers, Agent Thompson set forth
the following information about Mr. Villanueva's alleged
drug trafficking conspiracy obtained through wiretaps and
surveillance of Mr. Villanueva and of several of his alleged
co-conspirators and others close to him.
September 11, 2012, OBNDD agents intercepted cell phone
communications via wiretaps suggesting Mr. Villanueva issued
orders to co-conspirators as the leader of a drug hierarchy
in which other individuals carried out his orders. Cell phone
communications intercepted on September 20, 2012, showed
co-conspirators Hinson and Martinez discussing their belief
that Hinson was under police surveillance and that Mr.
Villanueva, referred to in this conversation by one of his
aliases, " G-B," wanted Hinson to stop the alleged
drug activity and possibly no longer show up at All-Star
Automotive, an auto repair shop co-owned and operated by Mr.
Villanueva. The co-conspirators also discussed how to
reassign Hinson's customer base to new locations for
further drug sales, and how to get money from drug sales to
Mr. Villanueva because Hinson owed " ten-fifty," or
$1,050.00, to Mr. Villanueva. Rec., vol. I at 139.
Additionally, on September 21, 2012, during the same
surveillance session, Hinson turned down a deal to sell forty
dollars worth of methamphetamine, stating that he had been
" cut off," allegedly by Mr. Villanueva, and that
" the police are all over me." Id. at 139.
September, 24, 2012, co-conspirators discussed whether Mr.
to in this conversation as the " big fella,"
had given Hinson permission to resume selling
methamphetamine. On October 9, 2012, Mr. Villanueva had a
telephone conversation with Martinez in which they determined
Martinez owed him " thirty three," or $3,300.00,
allegedly for methamphetamine. Id. at 141. Later
that night, Mr. Villanueva called Martinez and instructed him
to prepare two bags of meth -- one with 14 grams and the
other with 4 grams -- to be ready by around 9:30 p.m. He also
told Martinez that he had " three-forty for [him] to
pick up from Satan," indicating that Mr. Villanueva had
$340.00 worth of methamphetamine from Satan, referred to in
the affidavit as co-conspirator Seth Speed. Id.
thirty minutes later, Mr. Villanueva called Martinez and told
him that the four-gram bag would be ready in an hour and a
half, and the fourteen-gram bag would be ready around 11:00
p.m. At around 11:15 p.m., Mr. Villanueva called Martinez and
told him to come over to his house and grab his phone because
he was having trouble staying awake and the woman would not
be able to pick up the drugs until 11:30 p.m. Martinez said
he would be there shortly, and nine minutes later he called
Mr. Villanueva, stating: " I'm at the front
door." Id. at 142. At this time, global
position data (ping data) from Martinez's phone showed
that he was located at Mr. Villaneuva's stepfather's
residence, the house subsequently searched.
series of conversations outlined in the affidavit took place
later that same night between Mr. Villanueva and Martinez, in
which Mr. Villanueva specifically coordinated two drug sales
over the phone by speaking to both Martinez and the customers
while giving Martinez instructions on how to distribute the
methamphetamine. During those cell phone calls, Mr.
Villanueva instructed Martinez to make two drug deals at a
McDonald's, one with a white trailblazer, and one with
" a Mexican chick" described as " Flacco's
sister" who drove a " gray Mazda 6."
Id. at 143. In a subsequent phone conversation, Mr.
Martinez told Mr. Villanueva, " Mission
accomplished" and added, " She gave me some feria
(money). She said it was a rack. So we wrapped it up."
Id. Mr. Villanueva then told Martinez, " Hold
on to it, and I'll see you tomorrow." Id.
October 13, 2012, Martinez received a call from David
Villanueva, Mr. Villanueva's brother, concerning the
preparation of methamphetamine. David told him that Mr.
Villanueva, referred to as " Gordo" in this
conversation, wanted Martinez to " get on top of that
chop suey you make," and to " snatch up 'Little
C' if you need to, at the shop, and y'all go
chop." Id. at 145. The affidavit points out
that " cutting," " chopping," and the
phrase " get on top of that chop suey," are all
slang terms used for preparing methamphetamine. Id.
at 145-46. In a phone conversation thirty-six minutes later,
Mr. Villanueva asked Martinez
if he had talked to " Little C" yet, and Martinez
said he hadn't but he was going to " hit up Little
C, so we can go take care of that." Id.
According to phone wiretaps, Martinez then called Little C,
also known as Colten Payton, to ask if he was busy because
Martinez needed Little C to help him if he had time.
Id. About an hour after this call, Martinez spoke
with his brother and asked him to come " cut the tree
down" at their dad's house, and then Martinez
stated: " Yea, we got all them little wild onions and
shit that are growing down there, and I gotta pull them
up," and " see if they're any good."
Id. " [T]he word 'onion' is a term used
in the drug community to refer to one ounce of illegal
drugs." Id. at 146. That same night, David
Villanueva told Martinez on the phone that he and Mr.
Villanueva, " G-B," were at " grandpa's
house,"  and that Mr. Villanueva might pass
out. Martinez said he would pick up David if he needed a
ride. Although no further cell phone communication took place
between David Villanueva and Martinez that night, ping cell
phone data showed that Martinez's phone was within five
meters of " grandpa's house" in Lawton at 10:25
October 16, 2012, additional intercepted wiretap
communications clearly showed Martinez speaking to an unknown
male about the fact that he owed " G-B" "
seventeen-fifty," or $1,750.00, and Mr. Villanueva can
be heard in the background during the call telling Martinez
to tell the unknown male where to meet Martinez to give him
the money for Mr. Villanueva.
throughout the month of January 2013, agents observed several
vehicles owned by individuals associated with Mr. Villanueva,
including his wife and girlfriend, parked at the residence in
question. Agent Thompson also observed Mr. Villanueva driving
his wife's vehicle during wiretaps and saw it parked
outside of his auto repair shop, All-Star Automotive. In
summary, Agent Thompson explained:
The approximately seventeen (17) days of telephone
interception conducted by OBNDD on Martinez's two (2)
telephones produced collectively 646 calls/communications
relevant to the offense under investigation. These two (2)
wiretaps, as well as a previous wiretap involving the phone
of one of Martinez's sub-distributors, Jimmie Hinson
(which produced 1,735 calls/communications relevant to the
offense under investigation), identified in excess of thirty
(30) individuals being involved with Mr. Villanueva's
methamphetamine distribution organization. The totality of
this investigation has confirmed that a conspiratorial
network has existed for a number of years, and this network
has distributed methamphetamine in the Comanche County area.
As described herein, including attachments, the residence . .
. is used by Mr. Villanueva as one of his residences. As
previously stated, drug distributors often use their
residences to store document and/or paraphernalia equipment
evidence indicative of their involvement in the illegal drug
Rec., vol. 1 at 55.
The Search Warrant
January 30, 2013, Oklahoma state court Judge Keith Byron
Aycock issued a no-knock search warrant for "
grandpa's house," the residence owned by Mr.
Villaneuva's stepfather. The warrant authorized the
search for " books, records, documents, contraband and
evidencing the business of illegal drug distribution and
laundering profits from this enterprise."  Id.
at 201. Agents executed the search warrant at the residence
in Lawton, Oklahoma, on February 1, 2013, and seized, among
other things, a loaded Springfield Model XD .40 caliber
firearm in the master bedroom.
federal grand jury indicted Mr. Villanueva on one count of
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). Mr. Villanueva filed a motion to
suppress evidence seized during the search, contending that
Judge Aycock was not a neutral and detached magistrate when
he issued the search warrant; that the warrant was not
supported by probable cause, did not meet the particularity
requirement, and was improperly executed; and that the good
faith exception did not preclude excluding the evidence. The
district court held a suppression hearing in which Mr.
Villanueva called one witness, Clay Hillis, who had
represented Mr. Villanueva on four previous occasions and who
had also represented Mr. Villanueva's son in a paternity
case. Mr. Hillis testified that the judge assigned to the
paternity case was Judge Aycock. Mr. Hillis told the opposing
attorney in the paternity case that he intended to move to
have Judge Aycock recused because he was concerned the judge
" had either prosecuted [Mr. Villanueva] directly
himself, or that he was part of a district attorney's
office that had prosecuted him."  Rec., vol. 3 at 7.
Instead, Mr. Hillis explained, ...