UNITED STATES OF AMERICA v. JULIO AVILES, SR., Appellant
Case No. 18-2967
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 12, 2019
PRECEDENTIAL. Argued on July 9, 2019. On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No.: 1-15-cr-00181-001). District Judge: Honorable John E. Jones, III. Before: McKEE, ROTH and RENDELL, Circuit Judges.
Daryl F. Bloom
Stephen R. Cerutti, II (Argued)
Office of United States Attorney
228 Walnut Street
P. O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
Quin M. Sorenson (Argued)
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
RENDELL, Circuit Judge:
Appellant Julio Aviles, Sr. was charged with various federal drug trafficking crimes and related offenses based, in large part, on evidence obtained pursuant to a search warrant. Aviles moved to suppress evidence obtained in the search or, alternatively, for a hearing to challenge the validity of the warrant. The District Court denied his motion, and he was convicted on all counts. At sentencing, the Government sought a term of mandatory life imprisonment pursuant to the Controlled Substances Act,
I.
In the course of investigating reports that Aviles was conducting a drug trafficking operation, the Lebanon County Drug Task Force applied for a search warrant to search, among other locations, Aviles‘s residence. In the affidavit of probable cause in the warrant application, Detective Ryan Mong and Sergeant Brett Hopkins, the affiants, relied upon information gathered through multiple controlled buys conducted by a confidential information, “RCI-1.” The affidavit states that RCI-1 was involved in a total of eight successful controlled buys and describes the five that involved purchases of narcotics from Aviles. These descriptions included, among other things, the dates of the buys and, for four of the five, that RCI-1 exchanged money for narcotics.1 The affidavit also describes
the affiants and their experience on the Lebanon County Drug Task Force, and offers a general explanation of the execution of controlled buys, which included a statement that an informant “is provided recorded Drug Task Force currency to make the purchase” during a controlled buy.
A magistrate judge issued a warrant, and, in the resulting searches, law enforcement recovered large quantities of multiple controlled substances, drug paraphernalia, and firearms. Aviles and twelve co-defendants were arrested and charged with various
After pleading not-guilty, Aviles moved to suppress the evidence discovered through the searches authorized by the warrant because, he claimed, the officers who had submitted the affidavit included false information and omitted other information, each of which may have affected the magistrate judge‘s decision to issue the warrant. Specifically, he argued that, while the general description of controlled buys represented that currency is exchanged for drugs at all controlled buys, some of Aviles‘s buys may have involved RCI-1‘s exchanging prescription drugs instead of currency. He also claimed that RCI-1 had conducted additional drug-related transactions with Aviles outside of the controlled buys. In his motion, Aviles argued that he had made “a substantial preliminary showing” that the false information and omissions were made intentionally or recklessly, and the falsity and omissions undermined the probable cause finding, and, therefore, he is entitled to an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155–56 (1978).
Although the District Court determined that Aviles had not made “a substantial preliminary showing” to warrant a Franks hearing, the Court conducted an evidentiary hearing to allow him to further develop his claim and make that showing. The Court allowed both parties to question Detective Mong and Sergeant Hopkins regarding their affidavit of probable cause but refused the defense‘s request to question RCI-1 based on concerns regarding her identity. In supplemental briefing following the hearing, and based on the officers’ testimony, Aviles asserted that at least two of the controlled buys involved an exchange of personal property for the drugs,2 midpage-ps n=“6“/>that Aviles and RCI-1 had a “relationship” independent of the controlled buys, that RCI-1 was a heroin addict, and that she had failed to abide by some of the officers’ instructions during the controlled buys. He asked that the District Court suppress the evidence discovered through the search pursuant to the warrant.
The District Court denied Aviles‘s motion to suppress, holding that he had failed to make the requisite threshold showing under Franks that the inaccuracies and omissions in the affidavit were made deliberately or recklessly. The Court also dismissed Aviles‘s challenges to RCI-1‘s credibility, reasoning that the affidavit
A jury convicted Aviles of all counts. Prior to sentencing, the Government indicated that it would seek mandatory life imprisonment pursuant to the Controlled Substances Act,
Aviles objected to the application of Section 841(b), arguing that none of his prior convictions qualified as felony drug offenses. In order to qualify as a predicate offense, he claimed that the state crime must criminalize the same controlled substances as those named in the Controlled Substances Act,
The District Court overruled Aviles‘s objections. The Court first noted that whether Aviles‘s prior convictions qualified as felony drug offenses hinged on the approach used to compare them to the federal definition. Under one approach, the categorical approach—described in Taylor v. United States, 495 U.S. 575, 600–01 (1990)—a court may only look to the statutory elements of a defendant‘s prior offenses and not to the facts underlying those convictions. See id. Under the other, the modified categorical approach, a court is permitted to look at the statutory elements and record documents from the underlying convictions. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). The former approach applies to indivisible statutes, or statutes that set forth only one crime, while the latter applies to divisible statutes, or statutes that include more than one crime. See id. at 2248–49. Citing Mathis, the District Court first determined that the New Jersey statutes under which Aviles had been convicted were divisible and, therefore, subject to the modified categorical approach. Because the indictment clearly established that Aviles‘s conviction had midpage-ps n=“8“/>included heroin as an element for each of his New Jersey convictions and because crimes involving heroin are felony drug offenses, the Court held that his convictions qualified as such for purposes of
The District Court also briefly addressed Aviles‘s Maryland conviction, overruling his objection because “a history report generated by the Defendant‘s fingerprints is sufficient to prove that the prior conviction is properly attributed to the Defendant.” A. 618–19. However, the Court noted that a conclusive ruling on the nature of this conviction was not necessary in order to impose a mandatory life sentence, since it concluded that he had been convicted of the requisite two felony drug offenses. The Court held that its determination that Aviles‘s New Jersey convictions qualify as such is sufficient and, accordingly, sentenced him to a term of life imprisonment. This appeal followed.
II.
The District Court had jurisdiction pursuant to
III.
On appeal, Aviles urges that we should vacate his conviction because the District Court erred by denying his motion to suppress or, alternatively, by denying him a Franks hearing. He also seeks resentencing, arguing that a term of life imprisonment should not have been imposed under either the First Step Act or the prior version of the Controlled Substances Act.
A.
In challenging his conviction, Aviles claims that the affidavit submitted in support of the warrant application contained two factual errors and omitted several important pieces of information. Specifically, he urges that the affidavit incorrectly stated that RCI-1 paid for the drugs with police currency at every buy and that RCI-1 exchanged cash for drugs on April 15. He also argues that the affidavit omitted that personal property was traded for drugs on March 30, that RCI-1 scheduled controlled buys without police instruction, that RCI-1 was a heroin addict, any information with which a judge could assess RCI-1‘s reliability, that RCI-1 had an “independent relationship” with Aviles, and that the personal property was illicit. Br. for Appellant at 17 (internal quotation marks omitted). Aviles urges that these errors and omissions were, at the very least, made recklessly and affected the midpage-ps n=“10“/>magistrate judge‘s probable cause determination. Thus, he claims that we cannot say with certainty that the warrant would have issued had these errors and omissions been corrected, and the District Court should have granted his motion to suppress, or, alternatively, granted him an opportunity to support his motion in a Franks hearing. On this basis, he asks that we vacate his conviction.
The Fourth Amendment provides that “no Warrants shall issue but upon probable cause, supported by Oath or affirmation.”
In this case, regardless of whether the alleged omissions and misstatements were made knowingly or recklessly, Aviles has failed to substantially show that probable cause would have been lacking if they had not been made. The following facts, among others, were supported by the affidavit and would have been unaffected by the deletion of the misstatements and the inclusion of the omissions:
- the affiants have extensive experience with the Lebanon County Drug Task Force;
- RCI-1 assisted the affiants in a total of eight police-supervised controlled buys, six of which involved the exchange of cash for drugs and two of which involved personal property;4
- the affiants conducted “a complete strip search” of RCI-1 immediately before each buy, A. 60;
- the affiants witnessed RCI-1 enter the locations of the controlled buys without heroin and saw her reappear with it afterwards;
- the affiants witnessed one of the deals, which occurred inside Aviles‘s car;
- the affiants conducted a search of RCI-1‘s person and belongings after each buy;
- the affiants witnessed “short term vehicle traffic . . . consistent with drug trafficking” coming and going at Aviles‘s residence, A. 59; and
- the affiants conducted a background check on Aviles, which revealed multiple prior felony drug convictions.
These facts, on their own, provided probable cause to support the issuance of the warrant. Moreover, they are dependent upon police observation and, thus, would not be affected by a judge‘s questioning of RCI-1‘s credibility. Because Aviles has not made a substantial showing that the alleged omissions and misstatements would have been material to the magistrate judge‘s probable cause determination, we conclude that the District Court did not err in denying his request for a Franks hearing. Accordingly, because he failed to meet his burden to support a Franks hearing, he necessarily cannot show that his motion to suppress should have been granted. We will affirm the District Court‘s denial of that motion.
B.
Aviles‘s challenge to the District Court‘s sentencing order is twofold: First, he urges that the First Step Act, which was enacted while this case was pending on appeal, applies. Because that legislation replaced the mandatory life sentence with a mandatory term of 25 years’ imprisonment and limited midpage-ps n=“13“/>the predicate offenses that would qualify a defendant for a mandatory sentence, Aviles argues that his life sentence should be vacated. Even if we determine that the First Step Act does not
1.
Aviles‘s first argument, that the First Step Act applies to him, is based on the language provided in Section 401(c) of that Act: Amendments made by it “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Pub. L. No. 115-391, § 401(c). The crux of Aviles‘s argument is that a sentence is not “imposed” until entry of final judgment by the highest court authorized to review it.
Although we have not yet had occasion to determine the applicability of the First Step Act to cases pending on appeal at the time of its enactment, the Seventh Circuit recently addressed the issue in United States v. Pierson and held that the defendant‘s “[s]entence was ‘imposed’ here within the meaning of [the First Step Act] when the district court sentenced the defendant.” 925 F.3d 913, 927–28 (7th Cir. 2019). The court rejected reasoning from United States v. Clark, which suggested that “[a] case is not yet final when it is pending on appeal,” id. at 928 (quoting 110 F.3d 15, 17 (6th Cir. 1997)), because “no other circuits have applied Clark‘s definition of ‘imposed‘” and because the word more commonly applies to the activity of district courts. Id.; see also id. at 927 (citing federal statutes and rules that indicate that a sentence is imposed by a district court).
We agree. “Imposing” sentences is the business of district courts, while courts of appeals are tasked with reviewing them by either affirming or vacating them. See, e.g., United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (“In other words, if the district court‘s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” (emphasis added)); Rita v. United States, 551 U.S. 338, 352 (2007) (“A pro-Guidelines ‘presumption of reasonableness’ will increase the likelihood that courts of appeals will affirm such sentences, thereby increasing the likelihood that sentencing judges will impose such sentences.” (emphasis added)). Congress did not refer to “finality,” and imposition and finality are two different concepts. Congress‘s use of the word “imposed” thus clearly excludes cases in which a sentencing order has been entered by a district court from the reach of the amendments made by the First Step Act.5 Accordingly, we hold that that Act does not apply to Aviles.
We next turn to Aviles‘s argument that the District Court erred in imposing a life sentence under the prior version of the Controlled Substances Act. Specifically, Aviles urges that his New Jersey and Maryland convictions do not qualify as felony drug offenses under that Act. Because his challenge presents a purely legal question, we exercise plenary review over the District Court‘s sentencing order. United States v. Henderson, 841 F.3d 623, 626 (3d Cir. 2016).
Pursuant to
an offense that is punishable by imprisonment for more than one year under any law of the United midpage-ps n=“16“/>States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.
To determine whether a conviction qualifies as a felony drug offense, we typically employ the “categorical approach,” which requires us to “compar[e] the elements of the statute forming the basis of the defendant‘s conviction with the elements of the generic crime,” i.e., the elements of a felony drug offense. Henderson, 841 F.3d at 627 (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)) (internal quotation marks omitted). A conviction will qualify as a predicate under this approach “only if the statute‘s elements are the same as, or narrower than, those of the generic offense.” Id. (quoting Descamps, 570 U.S. at 257) (emphasis in original). We do not consider the facts underlying a conviction when applying this approach. Id. Here, that would require us to compare the elements of the crimes defined in the New Jersey and Maryland statutes to the definition of “felony drug offense.” If one of the state statutes is broader, or covers more conduct than the federal law, then Aviles‘s conviction under that law cannot qualify as a felony drug offense.
The categorical approach cannot be applied with ease, however, where a statute of conviction is “divisible,” or midpage-ps n=“17“/>contains alternative elements, thereby making it impossible to determine precisely which crime was committed. Id. When presented with such a statute, we employ the “modified categorical approach,” which allows courts to “look[] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (citation omitted). In this case, we would then compare the elements of that crime to the definition of “felony drug offense” to determine whether Aviles‘s state conviction qualifies as such.
Although these two approaches appear straightforward, difficulty ensues when presented with a statute that contains alternatives that may not be elements and, instead, may be “various factual means of committing a single element” that “a jury need not find (or a defendant
such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy “Taylor‘s demand for certainty” when determining whether a defendant was convicted of a generic offense. But between those documents and state law, that kind of indeterminacy should prove more the exception than the rule.
Id. (citation omitted).
The District Court imposed a mandatory life sentence based on Aviles‘s two prior convictions under New Jersey state law. Because all three state statutes of conviction—both New Jersey statutes and the Maryland statute—explicitly list, or incorporate other provision‘s lists of, covered controlled substances, and each criminalize conduct involving at least one substance not covered by Section 841‘s definition of “felony drug offense,” we need to delve more deeply under Mathis to determine whether the statute is divisible. If it is divisible midpage-ps n=“19“/>because the alternative drug types listed or incorporated by the state statutes are elements, such that different crimes are enumerated, we may use the modified categorical approach and look at the relevant criminal records to determine whether those state offenses are predicate offenses. On the other hand, if those substances are merely means, such that there is only one crime with different ways of committing it, then the state statute criminalizes conduct broader than that included in the definition of “felony drug offense,” and Aviles‘s convictions cannot qualify as such. We must consider whether substance type is an element or a means in each statute of conviction individually.
We first address Aviles‘s conviction under
Except as authorized by P.L.1970, c. 226 (C.24:21-1 et seq.), any person who knowingly maintains or operates any premises, place or facility used for the manufacture of methamphetamine, lysergic acid diethylamide, phencyclidine, gamma hydroxybutyrate, flunitrazepam, marijuana in an amount greater than five pounds or ten plants or any substance listed in Schedule I or II, or the analog of any such substance, or any person who knowingly aids, promotes, finances or otherwise participates in the maintenance or midpage-ps n=“20“/>operations
of such premises, place or facility, is guilty of a crime of the first degree and shall, except as provided in N.J.S.2C:35-12, be sentenced to a term of imprisonment which shall include the imposition of a minimum term which shall be fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole. Notwithstanding the provisions of subsection a. of N.J.S.2C:43-3, the court may also impose a fine not to exceed $750,000.00 or five times the street value of all controlled dangerous substances, controlled substance analogs, gamma hydroxybutyrate or flunitrazepam at any time manufactured or stored at such premises, place or facility, whichever is greater.
First, we look to see if a New Jersey state court decision “definitively answers the question.” Mathis, 136 S. Ct. at 2256. Aviles asserts that State v. Kittrell, 678 A.2d 209, 216 (N.J. 1996), does so by referencing the drugs listed in the statute as “CDS,” or controlled dangerous substances. But that case does not address the exact issue before us: whether the substances listed in or referenced by the statute are means or midpage-ps n=“21“/>elements. See Mathis, 136 S. Ct. at 2256 (using an Iowa state court decision explicitly holding that the Iowa statute‘s listed alternatives are means). We have neither found nor been alerted to any New Jersey state court decision speaking to this discrete issue and, thus, must turn to the other two methods provided by the Supreme Court in Mathis.
The next method requires us to consider the language of
Additionally, the language of
The Government supports its argument for the opposite conclusion by citing to the discretionary fine provided by
Having concluded that Aviles‘s conviction under
that conviction is a predicate felony drug offense using that approach.
We conclude that two of Aviles‘s three prior state convictions, his convictions under
IV.
For the foregoing reasons, we will affirm the District Court‘s denial of Aviles‘s motion to suppress, and we will vacate the judgment of sentence and remand for the District Court to determine the appropriate sentence.
RENDELL, Circuit Judge