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United States v. Pacheco

United States Court of Appeals, Tenth Circuit

March 7, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JOSEPH P. PACHECO, Defendant-Appellant.

         Appeal from the United States District Court for the District of Kansas (D.C. No. 2:13-CR-20068-CM-1)

          Gregory C. Robinson, the Law Office of Gregory Robinson, Lansing, Kansas, appearing for the appellant.

          Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, United States Attorney with her on the brief), Kansas City, Kansas, appearing for the appellee.

          Before BRISCOE, EBEL, and MATHESON, Circuit Judges.


         In 2013, Defendant Joseph Pacheco was indicted on one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B)(viii), one count of possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). At trial, the jury returned a verdict of guilty on all counts, and Pacheco was sentenced to a within-guidelines term of 355 months in prison.

         On appeal, Pacheco challenges several elements of his conviction and sentence. With regard to his conviction, he first argues the district court erred in denying his motion to suppress evidence gleaned from a cell phone recovered by officers at the scene of his arrest because the device was originally seized in violation of the Fourth Amendment. In the alternative, he maintains the evidence from the cell phone should have been suppressed because the warrant ultimately authorizing officers to search the phone was authorized in Kansas but executed at a computer lab in Missouri. Finally, Pacheco contends the district court abused its discretion by denying his request for a jury instruction on the lesser-included charge of simple possession.

         As for his sentence, Pacheco argues the district court further abused its discretion in how it defined the amount and type of methamphetamine with which Pacheco was charged for sentencing purposes. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM the district court.

         I. BACKGROUND

         A. The Arrest

         On February 4, 2014, while responding to reports of a simple disturbance between two vehicles, Officer Jacob Dent of the Kansas City, Kansas Police Department ("KCKPD") pursued one of the vehicles through Kansas City, Kansas, only calling off the chase when the car entered a neighboring jurisdiction. After returning to headquarters, Officer Dent determined that the car was driven by the Defendant, Joseph Pacheco, and that the Kansas Department of Corrections ("KDOC") had issued a warrant for his arrest pursuant to an outstanding parole violation.

         The next day Officer Dent went to the address listed on the car's registration, 3101 South 39th Street, intending to arrest Pacheco for violating the terms of his release. Upon his arrival, Dent saw the car parked in the driveway, approached the back door of the residence, knocked, and peered through the door's double glass window, observing Mr. Pacheco sitting at a computer desk. At this point Pacheco "looked straight at" Officer Dent for ten to fifteen seconds, ignored Dent's requests for Pacheco to come to the door, slowly scooted his chair back from the desk, and disappeared from view. R. Vol. II at 31.

         Having determined that Pacheco was unlikely to surrender, Officer Dent retreated to his squad car and called for backup. He was joined shortly thereafter by three other members of the KCKPD and Vic Harshbarger, an officer with the KDOC. After loudly commanding anyone in the house to come out with their hands up, the officers decided to make entry. Just prior to the officers forcing their way into the residence, three men walked out the back door and surrendered to the officers. These men were later identified as John Carter, Jason Crump, and Walter Flaugher.

         In response to the officers' questions about whether anyone else was in the house, one of the men responded that "he's in the residence, he has a gun, and . . . he said he will not go back to prison." Id. at 44. Having seen Pacheco earlier through the window Officer Dent presumed Pacheco was still in the home, although the comments did not identify him by name.

         At this point the officers entered the residence and swept the house room by room in search of Pacheco. Upon arriving at the upstairs bedroom the officers noticed a mattress askew from the corresponding frame and box spring, and searched under the bed and between the mattress and the box spring "to be sure that nobody would, one, be hiding in the debris on top of the bed, and then two, wasn't trying to conceal themselves between the box springs and mattress, hiding." Id. at 52. Looking under the mattress, the officers saw a handgun, a green tube that appeared to contain several individual baggies of narcotics, and a separate baggy that also appeared to contain narcotics.

         Leaving these items under the bed, the officers continued to search for Pacheco, eventually entering an unfinished attic space off the main bedroom. Seeing a bulge in the insulation along the walls in this attic, the officers peeled back the insulation and found Pacheco lying between the insulation and the exterior wall. The officers grabbed Pacheco by the arms and picked him off the floor, at which point he dropped a cell phone he had been holding in his hands. The officers then placed Pacheco in handcuffs and escorted him outside the residence and into Officer Dent's waiting patrol car.

         B. The Search

         Following Pacheco's arrest, the KCKDC narcotics unit sought and obtained a warrant to search the residence for evidence of narcotics activity. The warrant, issued by a Wyandotte County District Court judge, authorized the search of 3101 South 39th Street, Kansas City, Wyandotte County, Kansas for:

• Methamphetamine
• Firearms
• Drug Paraphernalia
• United States currency
• records of narcotics transactions, and documents which prove legal occupancy including, but not limited to, writings, books, checkbooks, and bank account statements, magazines, records, tax receipts, utility receipts, rent receipts, post-marked envelopes, photographs, and keys, all of which tend to show the identity of persons in ownership, dominion, or control of said premises.

R. Vol. I at 71 ("The Physical Search Warrant").

         Pursuant to this warrant, members of the KCKPD narcotics unit entered the residence and seized the weapon and drug paraphernalia Officer Dent had seen underneath the upstairs mattress, as well as a collection of other drug paraphernalia including smaller quantities of drugs, a digital scale, and plastic baggies from elsewhere in the house. Lab testing revealed that the substance found underneath the upstairs mattress and elsewhere was a methamphetamine mixture. The methamphetamine mixture was later determined to be between 94% and 95% "pure" methamphetamine. After pulling DNA from the weapon found underneath the upstairs mattress, tests concluded that the three individuals who left the house prior to the officers' entry could be excluded as the source of the major DNA profile pulled from the gun, but Pacheco could not.[1]

         The officers executing the search warrant also recovered the phone that Pacheco dropped when he was discovered in the attic. The officers did not search the contents of the phone on the spot, but rather applied for a search warrant for the contents of the phone. The affidavit in support of that warrant application noted that retrieving the information on the phone would need to be done "by a qualified computer expert in a laboratory or other controlled environment." R. Vol. I at 118. One such environment, according to the affidavit, was the Heart of America Regional Computer Forensics Laboratory located just across the Kansas - Missouri border in Missouri. On the basis of this affidavit a Kansas state judge issued a warrant authorizing the search of Pacheco's phone for digital information, contacts, photos, messages, and records of narcotics transactions. R. Vol. I at 121 ("The Digital Search Warrant"). When the phone's contents were analyzed at the lab in Missouri, the government found photos of a book depicting a gun like the one recovered from underneath the mattress, and several text messages that arguably tied Pacheco to drug distribution.

         C. The Trial

         Pacheco was indicted on federal narcotics distribution and weapons charges. Prior to trial Pacheco challenged the seizure of his cell phone on the basis that the Physical Search Warrant did not specifically authorize the seizure of his electronic devices. In the alternative, Pacheco argued the district court should suppress evidence gleaned from his cell phone because the Digital Search Warrant was authorized by a Kansas judge, but executed in Missouri. The district court denied these motions.

         The case then proceeded to trial. At trial the government introduced the DNA evidence and the text messages and photos from the phone, as well as the testimony of several of the officers involved in the investigation and the testimony of Jason Crump, one of the men who left the house prior to the officers entering and arresting Pacheco. Mr. Pacheco testified in his own defense, and in response the government offered the rebuttal testimony of Felix Leal, who was then serving a sentence for distribution of methamphetamine and illegal weapons possession. Leal testified that in 2012 he had sold Methamphetamine to Pacheco between eight and twelve times, in varying amounts ranging from an eight-ball (3.5 grams) to an ounce. After hearing this evidence, the jury returned a verdict of guilty on all counts.

         Following the verdict, the probation office prepared a revised Presentence Investigation Report ("PSR") that took into account the officers' investigation and Leal's testimony. Pacheco objected to several components of the report, most notably that the PSR attributed to Pacheco for distribution purposes the amounts of methamphetamine Leal testified as having sold to Pacheco. The district court largely overruled those objections, but did reduce the amount of methamphetamine attributed to Pacheco to 154.96 grams, the lowest total supported by Leal's testimony.[2]

         The PSR classified all the methamphetamine attributed to Pacheco for sentencing purposes as "ice" methamphetamine.[3] While the drugs found at Pacheco's residence were confirmed to be between 94% and 95% "pure, " the PSR's basis for classifying the remaining drugs with which Pacheco was attributed as "ice" was that Leal had sold sufficiently pure methamphetamine to two confidential informants "close in time to when Leal reportedly supplied the defendant with methamphetamine." R. Vol. III at 61. The Defendant also objected to this classification, but the district court overruled that objection. With a guidelines range between 262-327 months for Counts 1 and 3, and a mandatory sixty-month sentence to be served consecutively to any other term of imprisonment on Count 2, the court sentenced the defendant to a within-guidelines sentence of 355 months. The Defendant timely appealed.


         On appeal Pacheco presents four issues for our review, two relating to his motions to suppress evidence recovered from his cell phone, one regarding a proposed jury instruction, and one relating to his sentence. The Court considers each of his arguments below.

         A. The cell phone was legally seized pursuant to the totality-of-the-circumstances parolee exception to the warrant requirement.

         After Pacheco's arrest, law enforcement sought and obtained a warrant to search 3101 South 39th Street for drugs, drug paraphernalia, firearms, currency, and "records of narcotics transactions." The Physical Search Warrant. When executing this warrant, the officers seized the cell phone Pacheco was holding when he was discovered hiding in the attic.[4] Pacheco moved to suppress the introduction of evidence from this cell phone at the district court, and has renewed that objection on appeal, arguing that the Physical Search Warrant is insufficient to permit the search or seizure of electronic devices, and there is no applicable exception to the warrant requirement that can excuse the seizure. The government responds that it was lawful for the officers to seize the cell phone incident to his valid arrest, or, in the alternative, pursuant to the special-needs or totality-of-the-circumstances exceptions to the warrant requirement.

         We review the ultimate decision to deny a motion to suppress based on the Fourth Amendment de novo, but will not disturb the district court's findings of fact unless they are clearly erroneous. United States v. Shuck, 713 F.3d 563, 567 (10th Cir. ...

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