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United States v. Wallace

United States Court of Appeals, Fifth Circuit

May 22, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
WILLIAM CHANCE WALLACE, Defendant-Appellant

         Appeals from the United States District Court for the Southern District of Texas

          Before JONES, CLEMENT, and HIGGINSON, Circuit Judges.

          EDITH BROWN CLEMENT, Circuit Judge.

         William Chance Wallace is a confirmed member of Tango Blast, a Texas crime syndicate. As of 2015, Wallace had been convicted of five violent felonies: one count of possession of a controlled substance with intent to distribute, two counts of aggravated assault with a deadly weapon, one count of possession of a controlled substance, and one count of unlawful delivery of a controlled substance. Wallace violated his probation for the unlawful delivery charge and a warrant was issued for his arrest on January 15, 2015. In two separate cases, Wallace was charged with and pleaded guilty to: (1) being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); and (2) aiding and abetting retaliation against a witness in a criminal investigation, in violation of 18 U.S.C. § 1512(b) and 18 U.S.C. § 2. In this consolidated appeal, we are called on to decide whether the district court erred in denying Wallace's motion to suppress. Because we conclude that it did not, we AFFIRM in part and DISMISS in part as MOOT. In doing so, we expressly overrule a line of cases coming out of the Southern District of Texas. In re Order Authorizing Prospective and Continuous Release of Cell Site Location, 31 F.Supp.3d 889, 891-900 (S.D. Tex. 2014); In re App. for Pen Register & Trap/Trace Device with Cell Site Location Auth., 396 F.Supp.2d 747, 756-65 (S.D. Tex. 2005).

         I.

         A. Firearm Case

         In May 2015, a confidential informant approached Shawn Hallett, a Special Agent with the Texas Department of Safety ("DPS"). The informant gave Wallace's phone number to Hallett and informed him that Wallace was a gang member and a wanted fugitive living in Austin. When Hallett verified this information, he discovered an outstanding arrest warrant. He then passed this information to DPS's gang unit in Austin.

         DPS Agent Jose Rodriguez (with the help of an assistant district attorney) then sought a Ping Order for authorization under both federal and state law to (among other things) obtain the "locations of cell site towers being accessed by" the cellular device linked to the number given by the confidential informant. This information is referred to as "E911" or prospective cell site data. A state district court judge granted the requested Ping Order for a period of sixty days going forward. As a result, DPS discovered that Wallace's phone had been turned off.

         Hallett reached out to his confidential informant and received a new telephone number for Wallace within a few days. Rodriguez then applied for and was granted a second Ping Order for this new cell phone number. With this Ping Order, DPS obtained the approximate, real-time GPS location of Wallace's cell phone from AT&T. Using this information, Hallett located Wallace near a pond on private property off U.S. Highway 87 north of Victoria, Texas. Officers arrested Wallace, discovering a Winchester Super X .22 magnum caliber round of ammunition in his pocket, a black Bersa Thunder .380 semi-automatic pistol at the edge of the pond, and a box of ammunition for that pistol along with an empty holster in Wallace's truck. Wallace was charged with being a felon in possession of a firearm.

         Once charged, Wallace moved to suppress the evidence obtained during the execution of the arrest warrant, including the pistol, ammunition, and relevant testimony. He argued that the Ping Order used to locate him was invalid because "1) the information provided to the State District Judge was ambiguous, overbroad and conclusory and 2) law enforcement was not engaged in an 'ongoing criminal investigation' of the Defendant." He also argued that the statutes authorizing the Ping Order were unconstitutional. The district court denied Wallace's motion, finding that suppression was not a cognizable statutory remedy under Fifth Circuit precedent. The district court also upheld the statutes as constitutional. Wallace timely appealed.[1]

         B. Aiding and Abetting Charge

         Approximately five months after Wallace was indicted for the firearms charge, Wallace and two accomplices posted a photograph of the firearms complaint and revealed the individual they believed to be the "snitch." As a result, that individual, who may or may not have been the actual confidential informant, was threatened. Wallace was charged with and pleaded guilty to aiding and abetting retaliation against a witness in a federal investigation, a violation of 18 U.S.C. § 1513(b) and 18 U.S.C. § 2. Pursuant to his plea agreement, Wallace waived his right to appeal his conviction and sentence for any reason other than ineffective assistance of counsel.

         C. Sentencing

         The cases were consolidated for sentencing. The district court sentenced Wallace to two concurrent 180-month sentences, followed by three years of supervised release. At the sentencing hearing, Wallace's attorney noted that the Guidelines range for the aiding and abetting charge would have been much lower had Wallace not been classified an armed career criminal, a threshold he would not have reached if he not been convicted on the firearms charge. Wallace ...


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