ORDER
The opinion filed on March 14, 2017 is amended as follows:
On page 896, paragraphs 2-3 remove <for two reasons. First, it> and replace with <It>.
On page 896, paragraph 3 after cunder-took the search. > add <The district court erred in denying Job’s motions to suppress evidence from all three searches solely on the basis of Job’s Fourth Amendment search waiver. >
On page 896-97 delete the fourth and first paragraphs and replace with <In addition, we note that the district court failed to recognize that our decision in King was limited to individuals on probation for violent felonies.
On page 897, footnote 2, after <People v. Morales,
An Amended Opinion is filed concurrently with this order.
With these amendments, the petitions for panel rehearing by Appellee and Appellant are DENIED.
The full court has been advised of Ap-pellee’s petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.
No further petitions for rehearing or petitions for rehearing en banc may be filed.
OPINION
Travis Job appeals from his conviction after a jury trial on two drug-related offenses: (1) conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and (2) possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and his sentence of 365 months, followed by a lifetime of supervised release. He argues that the district court erred by denying his motions to suppress evidence found during searches of his person, car, and home. He also argues that the district court erred when it denied his requests for jury instructions on the lesser included offense of simple possession and on multiple conspiracies. He contends that the district court erred when calculating his guidelines sentencing range when it applied: (1) a two-level increase for an offense involving the importation of methamphetamine under United States Sentencing Guidelines (“U.S.S.G.”) § 2Dl.l(b)(5), (2) a two-level increase for an offense in which the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance under § 2Dl.l(b)(12), and (3) a two-level increase for an offense involving an unlawful discharge of a toxic substance under § 2Dl.l(b)(13)(A). Finally, he argues that his sentence of 365 months is substantively unreasonable.
We have jurisdiction under 28 U.S.C. § 1291; we affirm Job’s conviction in part, vacate it in part, and remand for further proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises from an investigation into a conspiracy involving the importation of methamphetamine from Mexico and its distribution in San Diego County and South Carolina. The conspiracy was led by Job’s codefendant at trial, Robert Rodriguez. The government alleged that Job served two roles within the conspiracy. Rodriguez fronted methamphetamine to Job for sale to third parties, meaning that drugs were provided to Job on the promise that he would pay Rodriguez later, after the drugs were sold. In addition, Job “cut” methamphetamine for Rodriguez and Carrie Brown-Rodriguez, Rodriguez’s wife. Cutting refers to adding another product to pure methamphetamine to add more weight to it and increase the quantity available for resale.
On October 3, 2012, the police arrested Job for possession of a controlled substance for sale and possession of drug paraphernalia after stopping him and searching his person and his ear.
In the police report, Officer Dedonato stated that he “felt it would be much safer for my partners and myself if I patted Job down for weapons.” He handcuffed Job prior to the pat down. During the pat down, he “felt a hard tube like object with a bulbous end in [Job’s] left cargo pocket.” Based on his training and experience, Officer Dedonato recognized the object as an illegal glass pipe. Officer Dedonato removed the pipe, which “contained a burnt white residue.” In Job’s pockets, Officer Dedonato found $1450 in cash and Job’s car keys. He then placed Job under arrest for possession of narcotics paraphernalia.
After seizing Job’s ear keys, Officer De-donato asked Job where he had parked his car. Job “looked around nervously and said, T don’t know.’ ” Officer Dedonato pressed the unlock button on Job’s key fob, and the car in the driveway beeped as it unlocked. Two other officers then searched Job’s car. They found a cigarette pack containing 3.9 grams of methamphetamine in “two Ziploc style bags” and a hand-rolled cigarette with “Spice,” which they recognized as an illegal street drug; another glass pipe containing burnt white residue; and a Blackberry cell phone.
At some point during the encounter, the officers conducted a records check, “which revealed [Job] was currently on probation with a 4th amendment waiver.” While on probation for a state drug offense, Job was required to “submit person, property, place of residence, vehicle, [and] personal effects to search at any time with or without a warrant, and with or without reasonable cause, when required by a probation officer or other law enforcement officer.” It is unclear when, if ever, the officers learned the precise scope of Job’s search waiver.
In December of 2012, police officers obtained a search warrant for Job’s residence, based in part on intercepts from wiretaps of Rodriguez’s phone. Wfiiile executing the search warrant, the officers found various items including: 56.4 grams of methamphetamine in Job’s freezer, five scales, small stashes of methamphetamine totaling 15.28 grams, baggies, several glass pipes, and undisclosed amounts of Spice, bath salts, and marijuana. In the garage, the officers found an invoice for items including a test tube, a hand boiler, and an Erlenmeyer flask. In the kitchen, the officers found cleaning supplies, a microwave, a hot plqte, and a white apron. After the search, the San Diego County Department of Environmental Health inspected Job’s apartment and found that the downstairs portion was “contaminated with methamphetamine residuals.” In a subsequent report, the department concluded that methamphetamine had been stored in Job’s kitchen and living room, but that it was “unknown if manufacturing was taking place” in the apartment.
Before trial, Job filed two motions to suppress: one for the evidence found on his person and in his car in October and
In determining Job’s guidelines sentencing range, the district court applied three offense level increases: (1) a two-level increase for an offense involving the importation of methamphetamine under U.S.S.G. § 2Dl.l(b)(5), (2) a two-level increase for maintaining a premises for the purpose of manufacturing or distributing a controlled substance under § 2Dl.l(b)(12), and (3) a two-level increase for the unlawful discharge of a toxic substance under § 2Dl.l(b)(13)(A). The district court also concluded that Job was subject to a 20-year mandatory minimum under 21 U.S.C. § 851. The court calculated a guidelines sentencing range of 360 months to life, and sentenced Job to 365 months in prison and supervised release for life.
II. FOURTH AMENDMENT SEARCHES
Job challenges the constitutionality of three searches: (1) the search of his person on October 3, 2012, (2) the search of his car on October 3, 2012, and (3) the search of his home on December 5, 2012. We must determine whether the searches were unreasonable under the Fourth Amendment. We review a district court’s denial of a motion to suppress evidence de novo and review the district court’s factual findings for clear error. United States v. Lara,
In denying Job’s motions to suppress, the district court concluded—based on our decision in United States v. King—that Job’s Fourth Amendment search waiver provided a justification for all three searches.
It is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down. The district court did not determine whether the officers were aware of the search waiver before conducting the search of his person and the search of his car. It based its decision solely on the fact that Job was subject to a Fourth Amendment search waiver at the time of the searches. Police officers must know about a probationer’s Fourth Amendment search waiver before they conduct a search in order for the waiver to serve as a justification for the search. In United States v. Caseres, we concluded that a “search is not justified by the state’s interest in supervising” parolees when the officers were unaware of the waiver before the search.
In addition, we note that the district court failed to recognize that our decision in King was limited to individuals on probation for violent felonies.
The government now offers numerous, independent justifications for each search aside from the search waiver. We address the government’s other justifications for the searches, some of which are raised for the first time on appeal, because we can affirm on any ground supported in the record. Recording Indus. Ass’n v. Diamond Multimedia Sys. Inc.,
A. Search of Job’s Person
The government bears the burden of proving that a warrantless search or seizure falls within an exception to the warrant requirement. United States v. Scott,
The government now argues, for the first time on appeal, that the initial stop and pat down were permitted under Terry v. Ohio,
We review de novo whether a Terry stop was supported by reasonable suspicion. Crapser,
In determining whether a stop was supported by reasonable suspicion, we' consider the totality of the circumstances. Thomas,
We give “significant weight to an officer’s observation of a visible bulge in an individual’s clothing that could indicate the presence of a weapon” as evidence supporting reasonable suspicion to conduct a pat down. United States v. Flatter,
The record provides no information on the offense for which Elliot was arrested— for example, whether it was for a crime of violence—and whether there was reason for the officers to have been concerned that Job and Holt were engaged in similar activity or might pose a danger to them. Dillard,
The government also raised a new justification for the pat down at oral argument, arguing that the stop was valid as a protective sweep under Maryland v. Buie,
Because the government has failed to prove a justification for the warrantless stop and subsequent pat down, we conclude that the search of Job’s person was unlawful. The evidence discovered during the pat down—a glass pipe and $1450 in cash—therefore should have been suppressed. See United States v. Lustig,
B. Search of Job’s Car
As noted, the government bears the burden of proving that a warrantless search of Job’s car falls within an exception to the warrant requirement. Scott,
The automobile exception allows the police to conduct “a warrantless search of a vehicle if there- is probable cause to believe that the vehicle contains evidence of a crime.” United States v. Brooks,
The government next argues that the discovery of the Fourth Amendment
The government has failed to prove a valid justification for the search of Job’s car. Therefore any evidence seized from the car—including the 3.9 grams of methamphetamine in baggies—should have been suppressed. See Lustig,
C. Search of Job’s Home
We next determine whether the evidence seized from a search of Job’s home on December 5 pursuant to a search warrant was reasonable under the Fourth Amendment. We review de novo the validity of a search warrant. United States v. Underwood,
Job argues that the affidavit in support of the search warrant provides an insufficient basis to establish probable cause that evidence of methamphetamine trafficking would be found in his home. Specifically, he argues that (1) the warrant relied in part on the unlawful search of Job’s person and his car on October 3; (2) the affidavit asserts that specific telephone numbers are “used by” individuals, but does not give factual support for those conclusions; and (3) the affidavit contains broad conclusions and editorializing by the affiant, Detective James Cady, that are not supported by underlying facts.
We normally give “great deference” to a magistrate judge’s finding that probable cause supports a warrant. Underwood,
According to Detective Cady, the facts in the affidavit are derived from: oral and written investigative reports, physical surveillance by law enforcement, a review of pen register data, statements by confidential sources, a review of telephone calls and text messages obtained through wiretapping of codefendant Robert Rodriguez and Brown-Rodriguez’s telephones, and information from law enforcement databases. The affidavit begins with statements that Robert Rodriguez and Carrie Brown-Rodriguez were involved in the distribution of methamphetamine. The affidavit states that Job assisted Rodriguez and Brown-Rodriguez in “ ‘cutting’ methamphetamine that is then sold or fronted to others.” The warrant identifies Job, Rodriguez, and Brown-Rodriguez as individuals involved in the distribution of methamphetamine, and alleges that there is probable cause for a violation of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 846. The affidavit also lists Job’s previous conviction in 2001 for conspiracy to distribute methamphetamine.
Job argues that the affidavit fails to establish probable cause because the affidavit does not provide sufficient facts to support Detective Cady’s conclusion that Job is a narcotics trafficker. Although the affidavit does not expressly assert that Job is a trafficker, the affidavit does provide facts to support the conclusion that Job was in the business of “buying and selling” methamphetamine. Underwood,
Job also argues that the' affidavit does not establish that evidence of methamphetamine trafficking would be found in his home. We have said, however, that “a magistrate is allowed to draw a reasonable inference that ‘[i]n the case of drug dealers, evidence is likely to be found where the dealers live.’” United States v. Fernandez,
Some statements in the affidavit are Detective Cady’s conclusions, interpretations of cryptic conversations, and interpretations of drug slang and coded terms. But
Despite some deficiencies in the affidavit, we conclude that after excising the references to the unlawful searches, the remaining portions of the affidavit established that there was a “fair probability that contraband or evidence of a crime” would be found in Job’s home. United States v. Williams,
III. THE EFFECT OF UNLAWFULLY SEIZED EVIDENCE ON THE JURY VERDICT
Having found that the district court erred in denying the motion to suppress the evidence found on Job’s person and in his car on October 3, we must next determine whether that error was harmless. A constitutional error, such as a failure to suppress evidence from a Fourth Amendment violation, is harmless only when it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California,
The jury convicted Job of conspiracy to distribute methamphetamine (“Count 1”) and possession with intent to distribute methamphetamine (“Count 5”). The district court should have suppressed two key pieces of incriminating evidence: 3.9 grams of methamphetamine in baggies, which was found in Job’s car on October 3, and $1450 in cash, which was found during the pat down on the same day. The government offered this evidence at trial as substantive evidence on both counts.
With regard to Count 1, the government argues that there was ample evidence-even without the fruits of the searches on October 3—for a jury to convict Job of conspiracy to distribute methamphetamine. At trial, Brown-Rodriguez testified that she witnessed two meetings between Rodriguez and Job. She also testified that Rodriguez met with Job to give him methamphetamine because Job said that he “had someone waiting to get meth from him.” In addition, Rodriguez and Job discussed a balance owed for methamphet
Job argues that none of this evidence shows that Job was involved in a larger conspiracy with Rodriguez and Brown-Rodriguez to distribute drugs. At most, he argues, the evidence indicates that Job had a “buyer-seller” relationship with Rodriguez. See United States v. Loveland,
Although the government offered evidence from the October 3 searches as evidence on both counts, the government provided substantial evidence of Job’s involvement in the conspiracy that pre-dated the October 3 searches. The prosecutor referenced the events of October 3 only once in closing argument in regard to Count 1. Based on our review of the remaining evidence and the likely effect of the evidence on a reasonable trier of fact, we conclude beyond a reasonable doubt that the admission of the illegally seized evidence did not contribute to the verdict on Count 1 for conspiracy to distribute methamphetamine. The district court’s failure to suppress the evidence therefore was harmless as to Count 1, and we affirm Job’s conviction for conspiracy to distribute methamphetamine.
We reach a different conclusion as to Count 5 for possession with intent to distribute methamphetamine. At trial, Job asserted—as his principal defense—that the 56.4 grams of methamphetamine found in his freezer on December 5 was for personal use. The government presented evidence of distribution, such as the baggies and scales found in Job’s home, to support its intent-to-distribute theory. But the government also relied on and explicitly invited the jury'to consider the evidence from the October 3 searches—particularly the $1450 in cash and the 3.9 grams of methamphetamine that should have been suppressed—as evidence of intent to distribute. Indeed, the prosecutor mentioned it three separate times in closing argument. During closing argument, the prosecutor stated:
Travis Job walked around with over $1,400 in his [pockets]. That is what he had on October 3rd, when he had the multiple bags of methamphetamine. And that is an interesting point to keep up. When you’re considering the [events of] October 3rd and whether or not [the methamphetamine possessed on December 5th] is personal use, the two bags of methamphetamine, know this, this scale in the I-Phone box that has these bags, tiny little bags right here, are the exact same type of bags that methamphetamine was packaged in that he was carrying around when he had his $1,400 on October 3rd, of 2012, when he was stopped and arrested.
The government correctly notes that the district court told the jury that the statements of counsel are not evidence, but the prosecutor’s remarks in closing argument were a persistent reminder for the jury to consider the evidence of the seizures on October 3 as evidence of Job’s possession with intent to distribute on December 5. Although there was other evidence to support Job’s conviction for possession with intent to distribute, the large amount of cash and small quantities of methamphetamine seized on October 3 provided critical evidence to rebut Job’s defense that the methamphetamine found in his freezer on
IV. JURY INSTRUCTIONS
At trial, Job requested two specific jury instructions, which the district court denied: an instruction on the lesser included offense of simple possession, with regard to Count 5, and an instruction on multiple conspiracies, with regard to Count 1. Because we vacate Job’s conviction for possession with intent to distribute, we need not address the district court’s denial of a jury instruction on the lesser included offense of simple possession. The issue can be raised again in the district court if the government chooses to retry Job on the charge of possession with intent to distribute.
“A multiple conspiracies instruction is required only if the defendants’ theory of the charged conspiracy or conspiracies ‘is supported by law and has some foundation in the evidence.’ ” Fernandez,
“Evidence sufficient to support a multiple conspiracies instruction is present where a jury could reasonably conclude that some of the defendants were only involved in separate conspiracies unrelated to the overall conspiracy charged in the indictment.” Mincoff,
Brown-Rodriguez also testified that Rodriguez hired Job to cut methamphetamine'for her and Rodriguez. The evidence at trial also indicates that Job was aware that the methamphetamine he cut was distributed to others. Brown-Rodriguez testi
Although a single conspiracy can include “several subagreements or subgroups of conspirators,” Fernandez,
V. SENTENCING ISSUES
We review de novo whether a district court complied with Rule 32 of the Federal Rules of Criminal Procedure in making its determinations at sentencing. We review a district court’s interpretation of the Sentencing Guidelines de novo and review its factual findings for clear error. United States v. Doe,
In its presentence investigation report, the probation office recommended three increases to the base offense level of Job’s guidelines sentencing range as follows: (1) two levels for an offense involving the importation of methamphetamine under U.S.S.G. § 2Dl.l(b)(5), (2) two levels for an offense in which the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance under § 2Dl.l(b)(12), and (3) two levels for an offense involving an unlawful discharge of a toxic substance under § 2Dl.l(b)(13)(A). In applying the three offense level increases recommended by the probation office and requested by the government, the district court stated:
There is no doubt, based on the evidence I heard, that [Job] was in the importing of methamphetamine, and the methamphetamine was coming from Mexico and was being given to him to cut and process. I have no doubt that that two-level increase should apply. I also don’t have any doubt with regards to the finding that he was maintaining the premises for the manufacturing and distribution of a controlled substance. I have no problems with that. I have no problems with the fact that there was an unlawfuldischarge of a toxic substance unless we’re prepared to assume that methamphetamine is not a toxic substance.
The district court then increased Job’s base offense level from 34 to an offense level of 40; with a criminal history category V, Job’s guidelines sentencing range was 360 months to life. The district court also concluded that Job was subject to a 20-year mandatory minimum under 21 U.S.C. § 851.
A. Sufficiency of District Court’s Findings at Sentencing
In his sentencing memorandum to the district court, Job argued that there was insufficient evidence to support the offense level increases. He argued that (1) there was no evidence that he was personally involved in the importation of methamphetamine, (2) there was no evidence that he had chemicals to manufacture methamphetamine in his homeland (3) “the underlying foundation for the discharge of toxic substances was never produced to the court.” Therefore, the burden was on the government to prove the facts to support these increases by a preponderance of the evidence. Romero-Rendon,
When a defendant makes specific objections to the presentenee investigation report, as Job did here, the district court must follow the procedures set forth in Rule 32 of the Federal Rules of Criminal Procedure. United States v. Doe,
In regard to the importation of methamphetamine under U.S.S.G. § 2Dl.l(b)(5), the district court made three factual findings based on the evidence at trial: (1) Job was “in the import
With respect to the increase under U.S.S.G. § 2Dl.l(b)(12) for maintaining a premises for the purpose of manufacturing or distributing methamphetamine, the district court stated that it did not “have any doubt with regards to the finding' that [Job] was maintaining the premises for the manufacturing and distribution of a controlled substance.” This statement does not explicitly rule on Job’s objection that he did not have any chemicals to manufacture methamphetamine in his home. Although the probation office offered support for its conclusion that the offense level increase applied—which may be the finding the court referred to here— the district court “may accept the presen-tence report as its findings of fact, but only after it has resolved all objections.” United States v. Standard,
As for the last two-level increase for an offense involving the unlawful discharge of a toxic substance under U.S.S.G. § 2Dl.l(b)(13)(A), the district court similarly applied the increase without ruling on Job’s objection that the government had not provided a factual basis for it. The district court cited no evidence—produced by the government at trial or at sentencing—for this increase, saying only that it had “no problems with the fact that there was an unlawful discharge of a toxic substance unless we’re prepared to assume that methamphetamine is not a toxic substance.” Because the district court’s ruling was not express or explicit, it was insufficient to comply with our interpretation of Rule 32. Doe,
On appeal, the government invites us to conduct our own factual inquiry to determine whether there were sufficient facts in the record to support these three offense level increases. But such determinations are fact-intensive inquiries better suited for the district court. Further, “it is well settled law in this circuit that when the district court fails to make the required Rule 32 findings or determinations at the time of sentencing, we must vacate the sentence and remand for resentencing.” Ingham,
Although we vacate Job’s sentence on both counts for failure to comply with Rule 32, we address Job’s arguments with respect to the offense level increases at sentencing because these issues are likely to arise again at resentencing, regardless of whether there is a new trial on Count 5. We do not address the issue of whether Job’s sentence was substantively unreasonable.
B. Importation of Methamphetamine Under U.S.S.G. § 201.1(b)(5)
U.S.S.G. § 2Dl.l(b)(5) allows for a two-level increase if “the offense involved the
The evidence at trial showed that Job’s codefendant Robert Rodriguez imported methamphetamine from Mexico. Rodriguez was charged with and convicted of conspiracy to import methamphetamine, in violation of 21 U.S.C. §§ 952, 960(b)(1)(H), 963. Job was not charged with that conspiracy, but with a separate conspiracy to distribute methamphetamine. At trial, the government provided no evidence that Job was personally involved in the importation of methamphetamine. At sentencing, the government therefore asked for this two-level increase through relevant conduct related to jointly undertaken criminal activity under U.S.S.G. § lB1.3(a)(l)(B)—pre-sumably the jointly undertaken activity between Job and Rodriguez. If Job was not personally involved in the importation, the increase could apply only if the district court determined that the importation was “within the scope of jointly undertaken criminal activity,” “in furtherance of that criminal activity,” and “reasonably foreseeable in connection with that criminal activity” under § lB1.3(a)(l)(B). The district court made no factual findings or determinations with respect to this argument at Job’s sentencing hearing.
On appeal, the government argues that § 2Dl.l(b)(5) of the Sentencing Guidelines can be imposed on a strict liability basis so long as the government proves that the drugs were imported by someone—and regardless of the defendant’s intent, knowledge, or lack of knowledge that the drugs were imported. Relying on United States v. Biao Huang,
In Biao Huang, relying on the plain language of the Guidelines, we rejected the argument that U.S.S.G. § 2Dl.l(b)(5) requires the government to show that the defendant himself personally imported the drugs.
Only one circuit has approved the government’s proffered reading of U.S.S.G. § 2D1.1(b)(5) that would dispense with the requirement that the defendant actually know the drugs were imported. In United States v. Serfass, the Fifth Circuit stated that the plain language of § 2Dl.l(b)(5) supports the conclusion that the increase applies to “a defendant who possesses methamphetamine that had itself been unlawfully imported” regardless of whether he or she had actual knowledge of the importation.
C. Maintaining a Premises for the Purpose of Manufacturing or Distributing Methamphetamine Under U.S.S.G. § 2Dl.l(b)(12)
A two-level increase under U.S.S.G. § 2Dl.l(b)(12) applies “to a defendant who knowingly maintains a premises,” which can be a single room, “for the purpose of manufacturing or distributing a controlled substance.” U.S.S.G. § 2D1.1 cmt. n.17. The application note also states that manufacturing or distributing methamphetamine must be “one of the defendant’s primary or principal uses for the premises.” Id. To make that determination, the district court “should consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes.” Id.
To support this increase, the government offered photographs of Job’s apartment, which had been admitted at trial, and a report by the San Diego County Department of Environmental Health, issued after an inspection of Job’s apartment. The report by the Department of Environmental Health states that it is “unknown” whether methamphetamine manufacturing occurred in Job’s apartment because “law enforcement removed the chemical containers prior to [the inspector’s] arrival.” The government argues that “the [district] court could certainly have found it more likely than not that one of the primary uses of the downstairs kitchen was to manufacture or distribute drugs.” As evidence that a primary purpose of the kitchen was to manufacture methamphetamine, the government notes that the kitchen cabinets lacked food and drink, but included a microwave and a hot plate, which are commonly used to cut methamphetamine. Job argues that there is no evidence to support the conclusion that Job maintained the premises for the primary purpose of either manufacturing or distributing methamphetamine.
From the statements made by the district court at sentencing, it does not appear that the court considered whether or not one of the primary purposes of Job’s kitchen was to manufacture methamphetamine. It also is not clear what the factual basis was for the court’s statement that it had no doubt “with regards to the finding that he was maintaining the premises for the manufacturing and distribution of a controlled substance.” Further, the report by the Department of Environmental Health is inconclusive as to whether manufacturing was taking place at Job’s home. The report indicates only that methamphetamine had been stored in Job’s kitchen and living room. Job also argues that there was no evidence at trial or at sentencing that he ever distributed methamphetamine out of his home. Without any findings of fact from the district court, we conclude that the government has not met its burden of proving by a preponderance of the evidence that Job maintained a premises for the primary purpose of manufacturing or distributing methamphetamine.
D. Unlawful Discharge of a Toxic Substance Under U.S.S.G. § 2Dl.l(b)(13)(A)
The district court applied an increase for the unlawful discharge of a toxic substance under U.S.S.G. § 2Dl.l(b)(13)(A). As the government acknowledges, the district court appears to have based its decision on a belief that methamphetamine is by itself a toxic substance, but it made no factual findings. An increase under
Although no violation of these statutes was discussed—let alone proved—at sentencing, the government argues that we may find factual support for this increase in the Department of Environmental Health’s report, which indicated that the chemicals acetone, methanol, glycerol, and ethanol were found in Job’s garage. The government maintains that acetone and methanol are both “per se ‘hazardous wastes’ ” covered by the Resource Conservation and Recovery Act, and therefore can be the basis for this increase. Although the Environmental Protection Agency has designated acetone and methanol as hazardous wastes, the government presented no evidence at sentencing regarding the form, quantity, or storage of these substances. See Protection of the Environment, 40 C.F.R. § 261.33 (2016). Therefore, we conclude that the government did not meet its burden of proving the facts necessary to support the increase under U.S.S.G. § 2Dl.l(b)(13)(A) by a preponderance of the evidence.
VI. CONCLUSION
The district court erred in denying Job’s motion to suppress the evidence discovered during the unlawful searches of Job’s person and car. That error was harmless with respect to Job’s conviction for conspiracy to distribute methamphetamine, and we therefore AFFIRM his conviction on Count 1. We do not reach the same conclusion with respect to Job’s conviction for possession with intent to distribute; we therefore VACATE his conviction on Count 5 and REMAND for further proceedings consistent with this opinion, including a possible retrial on that count. We VACATE his sentence on both counts and REMAND for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
Notes
. At the time of the searches, Job was on probation for unlawful possession of a controlled substance, in violation of California Health and Safety Code § 11377(a). This offense is known as a "wobbler” because it can be punished as a misdemeanor or a felony. United States v. Diaz-Argueta,
In Lara, we said that violations of California Health and Safety Code §§ 11378 and 11379(a), for the possession for sale and transportation of methamphetamine, are "nonviolent drug crimefs].”
. The facts surrounding the searches on October 3 are drawn from the police report and
. At the time of the searches, Job was on probation for unlawful possession of a controlled substance, in violation of California Health and Safety Code § 11377(a). This offense is known as a '‘wobbler” because it can be punished as a misdemeanor or a felony. United States v. Diaz-Argueta,
In Lara, we said that violations of California Health and Safety Code §§ 11378 and 11379(a), for the possession for sale and transportation of methamphetamine, are "nonviolent drug crime[s].”
. The government argues that a pat down for the officers’ safety was justified because the officers were serving a warrant "at dusk, only to have two unknown men (who might be [Elliot's] compatriots) suddenly open the garage at the target home as soon as police arrive.” The officers would certainly be permitted to conduct a pat down if they reasonably believed that their "safety or that of others was in danger,” but the pat down is permitted only if the initial stop itself was based on reasonable suspicion. Thomas,
. In any event, the government conceded at oral argument that even if the officers knew of the existence of Job’s Fourth Amendment search waiver, they did not know the terms of the waiver when they searched the car or that Job was in fact only a nonviolent probationer.
. Although the affidavit includes no information about subscriber information or voice recognition for Job’s phone number, his identity was corroborated when Brown-Rodriguez referred to him as Travis over the phone, and when officers observed him with Brown-Rodriguez in the parking lot 30 minutes after Brown-Rodriguez and Job discussed meeting.
. The government misstates our standard of review for harmless error; the standard is not whether "a rational jury could ... have found Job guilty” on both counts. See United States v. Oaxaca,
. Job argues that 21 U.S.C. § 851 violates the Sixth Amendment because the sentencing enhancement scheme increases his mandatory minimum based on a fact that has not been decided by a jury. Current Ninth Circuit and Supreme Court precedent foreclose this argument. See Almendarez-Torres v. United States,