United States v. Banks
706 F. App'x 455
10th Cir.2017Background
- Banks was arrested in a Geary County, KS drug-trafficking investigation and indicted for conspiracy to distribute >280 g of cocaine base and multiple distribution counts.
- Pretrial, Banks moved to dismiss under the Speedy Trial Act; the district court denied the motion after granting an ends-of-justice continuance.
- The government obtained historical cell-site location information (CSLI) under 18 U.S.C. § 2703(d) without a warrant and used it in pretrial proceedings; the district court admitted the CSLI.
- Law enforcement executed a search of Banks’s residence; the district court denied Banks’s motion to suppress evidence from that search, finding probable cause for the warrant.
- Banks was convicted on all counts. The PSR attributed 8.477 kg of cocaine base to Banks, applied a two-level firearms enhancement and a four-level leader/organizer enhancement, producing a guidelines range of 360 months–life; the court initially imposed life, then vacated and resentenced to 360 months while later adopting the drug-quantity finding but making no leadership findings.
- On appeal, Banks challenged: (1) Speedy Trial Act denial; (2) constitutionality/admission of CSLI under § 2703(d); (3) denial of suppression of residence search; (4) reasonable-doubt jury instruction; and (5) sentencing errors (particularized drug-quantity findings and § 3B1.1 leadership enhancement).
Issues
| Issue | Banks' Argument | Government's Argument | Held |
|---|---|---|---|
| Speedy Trial Act dismissal | District court violated Speedy Trial Act by granting continuances and failing to try him timely | Continuance was a valid ends-of-justice tolling with adequate findings | Affirmed: ends-of-justice continuance was proper; no Speedy Trial Act violation |
| Admissibility/constitutionality of CSLI (§ 2703(d)) | § 2703(d) unconstitutionally permits seizure of CSLI without warrant; suppression required | Users lack expectation of privacy in historical CSLI; § 2703(d) is not a Fourth Amendment search | Affirmed: § 2703(d) constitutional for historical CSLI; admission proper |
| Suppression of search-evidence | Warrant/search of residence lacked probable cause; evidence should be excluded | Affidavits supported probable cause; intercepted-call provenance proved by preponderance | Affirmed: warrant affidavits sufficient; suppression denial proper |
| Reasonable-doubt jury instruction | Instruction constitutionally deficient and misstated burden of proof | Instruction materially identical to one previously upheld; Petty forecloses challenge | Affirmed: instruction constitutional under Petty |
| Particularized drug-quantity findings at sentencing | Court failed to make individualized findings tying Banks to 8.477 kg as relevant conduct | District court findings insufficiently particularized; government conceded error on this point | Reversed (as to sentence): vacated and remanded for particularized drug-quantity findings |
| Four-level § 3B1.1 leadership enhancement | No record evidence supports leader/organizer enhancement | Court applied enhancement but made no findings at resentencing; government did not defend those absent findings | Vacated as to sentencing on this ground; remand for factual findings regarding leadership and resentencing |
Key Cases Cited
- United States v. Petty, 856 F.3d 1306 (10th Cir. 2017) (upheld materially identical reasonable-doubt instruction)
- United States v. Sells, 541 F.3d 1227 (10th Cir. 2008) (standard of review for drug-quantity relevant-conduct findings)
- United States v. Irvin, 682 F.3d 1254 (10th Cir. 2012) (review standards for Guidelines-enhancement challenges)
- United States v. Torres, 53 F.3d 1129 (10th Cir. 1995) (§ 3B1.1 enhancement focuses on control and responsibility)
- United States v. Gallant, 537 F.3d 1202 (10th Cir. 2008) (§ 3B1.1 requires showing defendant supervised at least one participant)
- United States v. Aptt, 354 F.3d 1269 (10th Cir. 2004) (guidance on § 3B1.1 application and required findings)
- United States v. Roberts, 14 F.3d 502 (10th Cir. 1993) (distinguishing organizers/leaders from important figures)
- Tillman v. Cook, 215 F.3d 1116 (10th Cir. 2000) (preservation and standard of review for jury-instruction challenges)