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United States v. Aviles

United States Court of Appeals, Third Circuit

September 12, 2019

UNITED STATES OF AMERICA
v.
JULIO AVILES, SR., Appellant

          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.

          Daryl F. Bloom Stephen R. Cerutti, II Office of United States Attorney Counsel for Appellee

          Quin M. Sorenson (Argued) Office of Federal Public Defender Counsel for Appellant

          Before: McKEE, ROTH and RENDELL, Circuit Judges

          OPINION

          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, 21 U.S.C. § 841(b), arguing that Aviles's prior state court convictions qualified as "felony drug offenses" under the statute. The District Court agreed and sentenced him accordingly. Aviles appeals the denial of his motion to suppress evidence obtained pursuant to the warrant and the District Court's order sentencing him to life imprisonment. We will affirm the District Court's denial of his motion to suppress, but, because we hold that at least two of his prior convictions do not qualify as felony drug offenses, we will vacate the District Court's sentencing order and remand for resentencing.

         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 drug trafficking crimes and related offenses. In the twenty-one-count indictment, Aviles was charged with conspiracy to distribute heroin, cocaine, and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(i), and (b)(1)(A)(iii) (Count 1); possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(i) (Count 2); possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) (Count 3); possession with intent to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 4); distribution of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 5); distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 6); distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Counts 11, 14, and 15); possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count 19); unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 20); and maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a) (Count 21).

         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] 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 "contained sufficient information for the judge to evaluate the informant's reliability." A. 166 n.2.

         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, 21 U.S.C. § 841(b). Under the law at the time, such a sentence could be imposed upon a defendant who had two or more previous convictions for "felony drug offenses." 21 U.S.C. § 841(b)(1)(A). The Government averred that Aviles had three qualifying predicate state convictions: (1) possession of a controlled dangerous substance with intent to distribute near a school zone in violation of N.J. Stat. § 2C:35-7, (2) operation of a controlled substance production facility in violation of N.J. Stat. § 2C:35-4, and (3) possession of a dangerous substance with intent to distribute or manufacture in violation of Md. Crim. Code § 5-602. In support, the Government submitted charging documents and commitment orders from the New Jersey convictions and a docket report from the Maryland conviction.

         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, 21 U.S.C. § 802(44), and the state crimes of which he had been convicted each named at least one additional substance not listed in § 802(44). He also argued that the Maryland conviction was not his.

         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-a court may only look to the statutory elements of a defendant's prior offenses and not to the facts underlying those convictions. See 495 U.S. 575, 600-01 (1990). 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 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 21 U.S.C. § 841(b)(1).

         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.

         After the District Court entered its sentencing order but while Aviles's appeal was pending, Congress amended the Controlled Substances Act with the First Step Act of 2018, Pub. L. No. 115-391, § 401. The First Step Act replaced the mandatory term of life imprisonment with a mandatory term of 25 years. § 401(a)(2)(A)(ii) (amending 21 U.S.C. § 841(b)). It also replaced the term "felony drug conviction" with "serious drug felony" and limited the offenses that qualified for that mandatory sentence. § 401(a)(1) (amending 21 U.S.C. § 802). The First Step Act provides that the 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." § 401(c).

         II.

         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. §§ 1291 and 3742(e).

         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 ...


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