UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL PEDRO ANDRES, Defendant-Appellant.
No. 19-10823
United States Court of Appeals, Eleventh Circuit
June 1, 2020
[PUBLISH]; Non-Argument Calendar; D.C. Docket No. 4:18-cr-00100-AKK-JEO-1; Appeals from the United States District Court for the Northern District of Alabama
Before BRANCH, LAGOA, and FAY, Circuit Judges.
Michael Pedro Andres (“Andres“) appeals his convictions and sentence for distribution of methamphetamine, conspiracy to distribute methamphetamine, and possession of methamphetamine with intent to distribute. Andres argues that the district court should have granted his concededly untimely motion to suppress because he showed good cause for its untimely filing. He also argues that the district court erred by denying him a sentence reduction for acceptance of responsibility. For the reasons discussed below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Bradley Bennett (“Bennett“) served as a paid informant for the DeKalb County, Alabama, Sheriff‘s Department. During the summer of 2016, Bennett worked with Andres‘s cousin, Pedro Gomes Andres (“Gomes“). Bennett and Gomes socialized after work and had once used methamphetamine together.
In June 2017, Gomes called Bennett seeking help in selling a large quantity of methamphetamine. Bennett eventually contacted Gary Hill (“Agent Hill“), an agent with the DeKalb County Sheriff‘s
At the direction of local and federal law enforcement, Bennett arranged for a “controlled buy” of two ounces of methamphetamine from Gomes and Andres. On August 1, 2017, Bennett, equipped with recording devices, met Gomes and Andres in a parking lot. Gomes and Andres arrived at the meeting in the off-white Cadillac Escalade, with Andres as the driver. Gomes entered Bennett‘s car and sold Bennett the requested methamphetamine.1 This exchange was recorded on video. Lab tests later confirmed the weight and purity of the methamphetamine from this “controlled buy.”
Again at the direction of law enforcement, Bennett arranged for a second “controlled buy” six days later. Wearing a recording device, Bennett met with Gomes and Andres to purchase two ounces of methamphetamine. Gomes and Andres arrived in the off-white Cadillac Escalade, with Andres again in the driver‘s seat. Bennett entered the vehicle and purchased the two ounces of methamphetamine. Andres received and counted the purchase money. This exchange was also recorded on video. Lab tests later confirmed the weight and purity of the methamphetamine from this second “controlled buy.”
Gomes then contacted Bennett to sell him more methamphetamine. Bennett, acting at the direction of law enforcement, arranged for a final purchase of one pound of methamphetamine on August 16, 2017. Bennett spoke to both Andres and Gomes to coordinate the purchase of the methamphetamine. Law enforcement intended this transaction to be a “buy-bust,” meaning Andres and Gomes would be arrested on their way to the transaction while in possession of the methamphetamine.
On the day of the “buy-bust,” Andres and Gomes told Bennett that they had the pound of methamphetamine and would meet Bennett at 4:30 p.m. in a parking lot. Bennett relayed this information to Agent Hill, who was in contact with the other law enforcement officials working on the “buy-bust.”
Sergeant Justin Dake (“Sgt. Dake“) was tasked with stopping Andres and Gomes before they arrived at the parking lot designated for the transaction. He met with the drug task force earlier in the day and knew that Andres and Gomes would be transporting about a pound of methamphetamine. He also knew that Andres and Gomes would be in an off-white Cadillac Escalade and knew the tag number for that vehicle. While on the route provided by the drug task force, Sgt. Dake spotted Andres and Gomes and initiated a traffic stop after observing the vehicle following too closely behind another vehicle. Sgt. Dake turned on his blue lights, but Andres and Gomes kept going, passing various safe places to stop. As Andres and Gomez were coming to a stop, Sgt. Dake saw a black object fly out of the passenger side of their vehicle. Sgt. Dake recovered the object and identified the content by its
Andres was indicted on four counts: one count of conspiracy to distribute and possess with intent to distribute fifty grams or more of methamphetamine, in violation of
The government filed an information pursuant to
At the plea hearing, Andres decided to proceed to trial. The district court set the trial to begin on November 5, 2018, and ordered that any motions in limine be filed at least one week beforehand. On October 29, 2018, Andres filed a motion titled “Motion in Limine and/or Motion to Suppress,” seeking suppression of the methamphetamine thrown out the Cadillac Escalade during the August 16, 2017, “buy-bust.” Andres filed that motion pursuant to
The district court heard argument on Andres‘s motion to suppress on the first day of trial. During argument, Andres‘s counsel conceded that the motion was untimely but asked the district court to consider it because the delay was based on “a strategy that turned out not to be very good.” Andres‘s counsel explained that he “was working under the turns out to be mistaken impression that this case would resolve itself somewhere down the road. . . . [The government] gave us every opportunity in the world to help ourself, which we were unable to do.” Turning to the merits of Andres‘s motion, his counsel argued that aerial footage of the traffic stop would show that Andres was not following too closely. Therefore, according to Andres, Sgt. Dake‘s traffic stop was pretextual and meant only to search his vehicle for narcotics, so any evidence arising from the stop—even if thrown out of the vehicle—must be suppressed.
The district court denied Andres‘s motion to suppress, finding that the motion was untimely and that Sgt. Dake was justified in stopping Andres because of the traffic violation and the ongoing criminal investigation. The district court also found that Andres abandoned the methamphetamine by throwing it out of the vehicle and therefore lacked standing to suppress the evidence.
The government then presented its case against Andres. The jury convicted Andres on all counts in the indictment directed against him.
After Andres‘s trial,
Andres objected to the PSR‘s failure to include an adjustment for acceptance of responsibility, claiming that he went to trial to preserve his challenge to the suppression ruling and his mandatory life sentence required by the applicable statute at the time. He claimed that he never denied responsibility for his conduct and that, at the sentencing hearing, he would admit to his criminal activity and accept responsibility for his conduct. Andres asserted that if the mandatory minimum had been changed before trial, he would have pled guilty and requested the revised mandatory minimum of 300 months of imprisonment. Andres‘s counsel also noted that he and Andres met with the government before trial and “pretty much admitted to his conduct.” He explained that his trial strategy was to convince the jury that Andres was “guilty of lesser crimes and not the more serious crimes, but [he] really had no defense.” The government, however, disputed that Andres admitted to everything and considered him to not be fully truthful at their meeting.
The district court overruled Andres‘s objection to the PSR‘s finding that he was not entitled to an acceptance of responsibility reduction. The district court noted:
I‘m constrained in part by not having any documents before me where these issues were preserved ahead of trial or any statements made ahead of the trial saying that this defendant is going to trial solely to preserve the constitutional issues or to challenge a statute.
Because I am told that this is a rare situation where a defendant who has gone to a trial can still get the acceptance of responsibility credit and that the acceptance of responsibility credit is not intended to apply to a defendant like your client who puts the government to its burden of proof of trial, I will overrule the objection.
During his allocution, Andres accepted responsibility for his criminal conduct and noted that he went to trial because he was facing a life sentence. The district court sentenced Andres to 360 months of imprisonment and ten years of supervised release. This timely appeal ensued.
II. STANDARDS OF REVIEW
We review for abuse of discretion the denial of motion to suppress on the grounds of timeliness. See United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990). A court may consider an untimely pretrial motion including a motion to suppress “if the party shows good cause.”
III. ANALYSIS
Andres raises two points on appeal. First, he argues that we should reverse his convictions because the district court erred in denying his “Motion in Limine and/or Motion to Suppress.”2 Second, Andres contends
A. The Motion to Suppress
Here, Andres concedes that his motion was untimely under both the scheduling order and
Andres, however, provides no authority for his argument that a defendant‘s tactical decision constitutes good cause for knowingly defying a scheduling order. Indeed, he can provide none because the law is clear that “[n]o good cause exists if ‘the defendant had all the information necessary to bring a Rule 12(b) motion before the date set for pretrial motions, but failed to file it by that date.‘” United States v. Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) (quoting United States v. Seher, 562 F.3d 1344, 1359 n.15 (11th Cir. 2009)). If Andres‘s pretrial actions (and inaction) were motivated by his belief that he was facing a mandatory life sentence and that he would be taking the case through trial and appeal, it was incumbent on Andres to timely file his motion to suppress and properly preserve the issue for review.3 Neither a strategic decision nor inadvertence constitutes good cause. Because Andres failed to establish good cause sufficient to overcome the untimely filing of his motion to suppress, we find that the district court did not abuse its discretion in denying the motion as untimely.
Next, we turn to the question of whether the methamphetamine should have been suppressed. Because Andres did not preserve this issue, our review is limited to a plain error analysis. See Bowers, 811 F.3d at 421. “To prevail under the plain error standard, an appellant must show: (1) an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial proceedings.” United States v. Ramirez–Flores, 743 F.3d 816, 822 (11th Cir. 2014) (quoting United States v. Pena, 684 F.3d 1137, 1151 (11th Cir. 2012)). “An error is ‘plain’ if controlling precedent from the Supreme Court or the Eleventh Circuit establishes that an error has occurred.” Id. (quoting United States v. Lejarde–Rada, 391 F.3d 1288, 1291 (11th Cir. 2003)).
A district court must suppress evidence obtained in violation of a person‘s
As to the merits of his suppression motion, Andres argues that Sgt. Dake did not have reasonable suspicion or probable cause to stop him based on the collective knowledge of the officers involved in the “buy-bust.” He claims that the task force members had no reasonable belief that Andres was transporting methamphetamine because the officers did not observe the loading of methamphetamine into the vehicle. He also claims that they could not have reasonable believed that Andres was driving with the requested methamphetamine because the prior “controlled buys” were for substantially less methamphetamine, making it unlikely that Andres and Gomes had the pound of methamphetamine requested by Bennett.
We find this argument without merit. Notably, Andres does not dispute the district court‘s finding that Sgt. Dake had probable cause to stop Andres because of the traffic infraction he observed, i.e., the vehicle following too closely to another vehicle. Moreover, Sgt. Dake was in constant contact with the officers involved in the investigation of Andres and Gomes, was briefed earlier in the day about the “buy-bust” operation, and knew the description and tag of the vehicle Andres would be driving. The officers running the investigation had overseen the two prior “controlled buys” of methamphetamine from Andres and Gomes and observed the communications between Bennett and Gomes. Bennett also informed the officers once Andres and Gomes advised that they were on their way to the meeting place with the methamphetamine. We therefore find that the officers’ collective knowledge justified Sgt. Dake‘s stop of Andres‘s vehicle, which matched the description provided to him. For this reason, and because Andres does not challenge the district court‘s finding that Sgt. Dake was justified in stopping Andres because of the traffic infraction, we do not find plain error in the district court‘s denial of Andres‘s motion to suppress.4
B. Reduction of Sentence for Acceptance of Responsibility
Andres next argues that, if this Court does not overturn his convictions, his sentence must be reduced under the Sentencing Guidelines because of his acceptance of responsibility. Andres claims that he went to trial because he faced a mandatory life sentence under the law at the time and wanted to preserve a constitutional challenge to such life imprisonment for a nonviolent
We review a district court‘s determination of a defendant‘s acceptance of responsibility for clear error. United States v. Williams, 627 F.3d 839, 844 (11th Cir. 2010). Under the Sentencing Guidelines, a defendant is entitled to a two-point reduction of his offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.”
A defendant‘s decision to stand trial “does not automatically preclude a defendant from consideration for such a reduction.”
A district court errs when it believes that, as a matter of law, it is prohibited from granting a reduction based on acceptance of responsibility because the commentary to the Guidelines “does not include any conduct that would automatically preclude a defendant from receiving the reduction.” United States v. Mathews, 874 F.3d 698, 709 (11th Cir. 2017).
Here, Andres did not plead guilty and instead held the government to its burden at trial, filing his motion to suppress just days before the outset of trial. While Andres claims that he admitted to his wrongdoing to the government before trial, this purported admission was not reflected at trial. Instead, Andres maintained that he was innocent of the charges arising out of the attempted sale of the pound of methamphetamine and sought to exclude the evidence necessary for those charges—the methamphetamine itself. Andres therefore did not accept responsibility for the criminal charges against him and instead raised issues relating to his factual guilt. See Gonzalez, 70 F.3d at 1239–40 (rejecting claim of acceptance of responsibility where defendant “attempted to avoid a determination of factual guilt” by not pleading guilty and instead seeking to exclude the essential evidence against him).
Andres also suggests that the district court erred because it believed it lacked the authority to grant a reduction for acceptance of responsibility. While “a court errs if it believes that it does not have the authority to grant such a downward reduction,” Mathews, 874 F.3d at 709, we find nothing in the record demonstrating that the district court believed that it was precluded, as a matter of law, from granting Andres the requested reduction.
IV. CONCLUSION
Based on the foregoing reasons, we affirm Andres‘s convictions and sentences.
AFFIRMED.
LAGOA
Circuit Judge