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United States v. Zuniga

United States Court of Appeals, Fifth Circuit

June 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
STEVE CUELLAR ZUNIGA, Defendant-Appellant

         Appeal from the United States District Court for the Northern District of Texas

          Before DENNIS, ELROD, and GRAVES, Circuit Judges.

          JAMES E. GRAVES, JR., Circuit Judge

         The opinion issued June 5, 2017 is withdrawn by the panel, and the following is issued in its place:

In this appeal, Steve Cuellar Zuniga first challenges the district court's denial of his motion to suppress evidence obtained during a warrantless search of his person and the vehicle within which he rode as a passenger. Second, Zuniga objects to his career offender sentence under U.S.S.G § 4B1.2 on the ground that its identically-worded residual clause was held unconstitutional by the Supreme Court in Johnson. Third, Zuniga argues that his career offender sentence is additionally infirm because his prior conviction for delivery of a controlled substance cannot serve as a predicate offense for the enhancement. For the reasons that follow, we AFFIRM the district court's denial of Zuniga's suppression motion, but we VACATE Zuniga's sentence, and REMAND for resentencing.

         I.

         In March 2014, the San Angelo Police Department ("SAPD") and the Texas Department of Public Safety ("DPS"), based on a tip from a cooperating defendant, combined efforts to interdict a traffic stop which confirmed-via the warrantless search of Steve Cuellar Zuniga's person and the vehicle within which he rode as a passenger-that Zuniga was a methamphetamine supplier.

         After the cooperating defendant agreed to participate in a controlled buy, the two teams formulated a plan: the SAPD-led team would conduct surveillance on Zuniga's residence, while DPS officers surveilled the anticipated methamphetamine delivery area. While surveilling Zuniga's residence, Detective Eddie Chavarria observed a porch light come on and a man emerge from the house and approach the truck while shining a flashlight. Moments later, another person emerged, and Detective Chavarria observed the duo conduct what appeared to be a vehicle inspection: one individual inspected the vehicle while the other tested the emergency flashers, left and right turn signals, brake lights, and the high beams. Detective Chavarria immediately relayed this information to other officers.

         Twenty minutes later, the vehicle left Zuniga's residence and Detective Chavarria decided to follow the vehicle. Approximately one block from the house, he witnessed the vehicle fail to signal for 100 feet continuously before turning left, in violation of Texas transportation law.[1] He immediately informed other officers they had grounds to stop the vehicle. When none of his fellow officers made the stop, Detective Chavarria continued to trail the vehicle. After driving approximately 18 blocks, Zuniga's vehicle pulled up to a convenience store and parked in a "disabled only" parking space.[2] Detective Chavarria radioed the truck's location and reported the potential parking violation.

         Sergeant David Egger heard Detective Chavarria's report and drove past the area. Sergeant Egger then instructed Detective Mark Medley to walk in front of the truck to see whether a disabled parking placard hung from the rear-view mirror. Detective Medley reported back that he had observed something hanging from the rear-view mirror, though he could not be sure that it was the required parking placard.

         Based on this information, Sergeant Egger asked Officer Cody Pruit, who had been notified at the start of his shift that his assistance might be needed later, to stop the vehicle shortly after it had left the parking lot. Officer Pruit- who later testified he only stopped the truck at Sergeant Egger's instruction, had not personally witnessed the alleged parking violation and was told that Zuniga would be driving the vehicle without a valid driver's license-effected the stop. Zuniga was not driving; instead, Angela Favila drove as Zuniga rode along as a passenger. After dispatch revealed that Favila did not have a valid driver's license and Zuniga had two outstanding city warrants, both were arrested. A subsequent search of Zuniga's person yielded a plastic bag of methamphetamine. While searching Zuniga's vehicle, officers discovered a backpack containing more methamphetamine, a nylon holster, a semiautomatic pistol, Mexican Mafia-affiliated paperwork, and two cell phones.

         Zuniga moved to suppress all evidence stemming from the traffic stop. The district court denied Zuniga's motion, reasoning that both traffic violations witnessed by Detective Chavarria were imputed to Officer Pruit under the collective knowledge doctrine, which provided him reasonable suspicion and justification for stopping the vehicle. Zuniga was subsequently charged by a federal grand jury with four counts. He entered a conditional guilty plea only to one count of Possession with Intent to Distribute 500 Grams or More of Methamphetamine and Aiding and Abetting, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(viii), and 18 U.S.C. § 2, preserving his right to challenge the suppression ruling.

         At sentencing, the district court applied U.S.S.G. § 4B1.1's career offender enhancement for Zuniga's two prior felony convictions of (1) evading arrest and (2) delivery of a controlled substance, finding that they satisfied § 4B1.2's definitions of "crime of violence" and "controlled substance offense" respectively. Based on the applicable Guidelines range of 262 to 327 months' imprisonment, the district court imposed a sentence of 327 months' imprisonment with five years' supervised release. Zuniga timely appealed.

         Following oral argument, we placed the case in abeyance to await the outcome of the en banc decision in United States v. Gonzalez-Longoria, No. 15-40041. Once the Gonzalez-Longoria decision was issued, we requested and received supplemental briefing from the parties advising on the effect, if any, of Gonzales-Longoria on the Court's disposition in this case. On August 24, 2016, Zuniga moved to file another supplemental brief, this time to address United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016), a recent panel decision by this Court concerning the applicability of § 4B1.1 to the same Texas drug offense of which Zuniga had been convicted. We granted Zuniga's motion over the Government's objection and received supplemental briefing from both parties on the issue.

         II.

         We consider, first, Zuniga's challenge of the denial of his motion to suppress evidence found during the warrantless search following the vehicle stop. When assessing a denial of a motion to suppress evidence, we review "factual findings for clear error and the ultimate constitutionality of law enforcement action de novo." United States v. Robinson, 741 F.3d 588, 594 (5th Cir. 2014). The evidence is viewed in the light most favorable to the prevailing party, which in this case is the Government. See United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010).

         Our inquiry is two-fold. First, we must determine whether there existed enough information to support a finding of reasonable suspicion to stop the vehicle within which Zuniga rode as a passenger. Second, if so, we must determine whether that knowledge can be imputed under the collective ...


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