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United States v. Villanueva

United States Court of Appeals, Tenth Circuit

May 2, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
FLORENTINO VILLANUEVA, JR., Defendant - Appellant

Page 1227

          Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 5:13-CR-00201-HE-1).

         David Autry of Oklahoma City, Oklahoma, for Defendant-Appellant.

         Mark R. Stoneman, Special Assistant U.S. Attorney (Sanford C. Coats, United States Attorney, with him on the brief), of Lawton, Oklahoma, for Plaintiff-Appellee.

         Before LUCERO, SEYMOUR, and GORSUCH, Circuit Judges.


Page 1228

          SEYMOUR, Circuit Judge.

         Following the execution of a search warrant, Florentino Villanueva, Jr., was

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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.


         A. The Affidavit for Search Warrant

         Based 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." [1] 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[2] and others close to him.

         On 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.

         On September, 24, 2012, co-conspirators discussed whether Mr. Villanueva, referred

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to in this conversation as the " big fella," [3] 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.[4] Id.

         Roughly 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.

         A 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." [5] Id. Mr. Villanueva then told Martinez, " Hold on to it, and I'll see you tomorrow." Id.

         On 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

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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," [6] 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 p.m.

         On 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.

         Finally, 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 trade.

Rec., vol. 1 at 55.

         B. The Search Warrant

         On 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 paraphernalia

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evidencing the business of illegal drug distribution and laundering profits from this enterprise." [7] 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.

         C. Court Proceedings

         A 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." [8] Rec., vol. 3 at 7. Instead, Mr. Hillis explained, ...

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