                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-1238
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

DANIEL SANDOVAL-VASQUEZ,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 02 CR 347-5—James F. Holderman, Judge.
                           ____________
  ARGUED OCTOBER 26, 2005—DECIDED JANUARY 26, 2006
                    ____________




  Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
  WILLIAMS, Circuit Judge. After the district court denied
his motion to suppress evidence police officers obtained
after entering his business, Daniel Sandoval-Vasquez
entered a conditional guilty plea to possessing, with the
intent to distribute, over five kilograms of cocaine. He now
appeals the denial of his motion to suppress and raises
challenges to his sentence. We agree with the district court
that the officers’ entry into his open business did not violate
the Fourth Amendment, and we do not find the district
2                                              No. 03-1238

court’s finding that Sandoval-Vasquez consented to the
officers’ subsequent search of a van located on his premises
clearly erroneous. Therefore, we uphold the denial of his
motion to suppress. We also decline to reverse the district
court’s determination that Sandoval-Vasquez should not
receive a minor role adjustment to his sentence. In light of
the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), however, we order a limited remand of
his sentence pursuant to the procedure we set forth in
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).


                   I. BACKGROUND
  On the afternoon of April 10, 2002, law enforcement
personnel conducting a narcotics investigation observed
Miguel Morales deliver six kilograms of cocaine. Chicago
Police Department officers detained Morales, and Morales
told the officers he obtained the cocaine from a van parked
inside an iron works business located at 4337 South Kildare
Avenue in Chicago. Morales described the van as a blue
panel van with faded white writing. Morales also stated
that the van contained numerous bricks of cocaine hidden
in a trap compartment. He did not state whether any
weapons were present at the location.
  Armed with this information, Officer Steven DeSalvo
drove to 4337 South Kildare, finding a business there
named Custom Fit Iron Works. He saw that the business
had a large, open garage door and that a blue van matching
the description given by Morales was inside the garage.
While on surveillance for about an hour, he noticed that
about ten people appeared to be working inside the busi-
ness, and he also saw people periodically enter and leave
the business. Around 4:30 p.m., Officer DeSalvo thought
that the business would probably soon be closing for the
day, so seven or eight Chicago Police Department officers
then entered the business through the open garage door
No. 03-1238                                                3

and a pedestrian entrance. At least two or three officers
entered with their weapons drawn, yelling “Chicago police.”
The officers then handcuffed the nine persons inside. Daniel
Sandoval-Vasquez, the defendant, identified himself as the
owner of the business. Officer DeSalvo later testified that
he asked Sandoval-Vasquez whether there were any
weapons on the premises, and Sandoval-Vasquez told him
there was a handgun in his office. Officers recovered a gun
from the office.
  Chicago Police Department Sergeant John McHugh then
arrived and took Sandoval-Vasquez outside. Sergeant
McHugh questioned Sandoval-Vasquez, but he did not first
advise him of his Miranda rights. Sandoval-Vasquez told
Sergeant McHugh that he was an informant for the Chicago
Police Department and was working on a marijuana deal
with an undercover officer. Sergeant McHugh responded
that the police were conducting a different investigation,
one concerning the van. Sandoval-Vasquez replied that the
persons who had brought the van to his business had been
removing cocaine out of a trap inside the van.
  FBI agents arrived on the premises at approximately 5:20
p.m. FBI Special Agent Jay Emigh presented Sandoval-
Vasquez with consent to search and advice of rights forms
in Spanish. Another officer read the forms to Sandoval-
Vasquez in Spanish, and, after acknowledging he under-
stood his rights, Sandoval-Vasquez signed the forms. He
told Agent Emigh he was paid $10,000 to store the van,
which had initially contained 42 kilograms of cocaine, at his
business. While Agent Emigh and the defendant were
speaking, an officer interrupted the two to explain that the
officers were having difficulty opening the trap compart-
ment inside the van. After Agent Emigh asked Sandoval-
Vasquez if he knew how to open the trap, Sandoval-Vasquez
explained how he believed the trap worked. He then tried
to help the officers open the trap compartment. The officers
eventually opened the trap and recovered 24 kilograms of
cocaine located inside.
4                                                No. 03-1238

  Sandoval-Vasquez later filed a motion to suppress
statements he made to law enforcement officials and the
cocaine and handgun recovered at his business. The district
court suppressed statements made to Sergeant McHugh
because Sandoval-Vasquez did not first receive Miranda
warnings. However, the district court ruled that Sandoval-
Vasquez voluntarily waived his rights and consented to the
search when he spoke with Agent Emigh. The district court
also concluded that the officers had probable cause to
believe that the van contained cocaine and that the officers
did not begin to search the van until after Sandoval-
Vasquez gave his consent. The district court held that the
gun and cocaine recovered at Custom Fit Iron Works, in
addition to Sandoval-Vasquez’s statements to Agent Emigh,
were admissible. Sandoval-Vasquez then entered a condi-
tional guilty plea to possessing, with the intent to distrib-
ute, over five kilograms of cocaine, in violation of 18 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. He now appeals.


                      II. ANALYSIS
A. Motion to Suppress
  When we review a district court’s denial of a motion to
suppress, we review the district court’s findings of fact for
clear error. United States v. Hagenow, 423 F.3d 638, 642
(7th Cir. 2005). We review its determination of the reason-
ableness of a search de novo. United States v. Husband, 226
F.3d 626, 629 (7th Cir. 2000).


    1. Entry into Sandoval-Vasquez’s Business
  Sandoval-Vasquez first contends the officers’ warrantless
entry into his business violated the Fourth Amendment. As
a result, he maintains, the district court should have
granted his motion to suppress evidence seized after the
officers entered the business as the fruit of an unlawful
entry. See Wong Sun v. United States, 371 U.S. 471, 484-87
No. 03-1238                                                  5

(1963); United States v. Robeles-Ortega, 348 F.3d 679, 681
(7th Cir. 2003).
   The Fourth Amendment provides that “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated.” In addition to protecting private homes,
the Fourth Amendment also affords protection to businesses
and commercial facilities. Dow Chemical Co. v. United
States, 476 U.S. 227, 235 (1986); Marshall v. Barlow’s, Inc.,
436 U.S. 307, 312 (1978). In either case, “[t]he touchstone
of Fourth Amendment analysis is whether a person has a
‘constitutionally protected reasonable expectation of pri-
vacy.’” California v. Ciraolo, 476 U.S. 207, 211 (1986)
(quoting Katz v. United States, 389 U.S. 347, 360 (1967)
(Harlan, J., concurring)). “What a person knowingly exposes
to the public, even in his own home or office, is not a subject
of Fourth Amendment protection.” Katz, 389 U.S. at 351.
  Here, the government maintains that the officers’ entry
into the business did not violate the Fourth Amendment,
and we agree. As we have said before, “[a]n open gate
invites entry.” United States v. Tolar, 268 F.3d 530, 532
(7th Cir. 2005). In Tolar, we held there was no violation of
the Fourth Amendment when police officers entered an
open business to ask the owner’s permission to conduct a
search. Id. We noted that a chain link fence surrounding
the property did not engender a reasonable expectation of
privacy in items visible from beyond the fence. Id. As in
Tolar, the officers in this case entered an open business to
seek the owner’s permission to conduct a search, and
nothing about the property asserted an expectation of
privacy. During the hour before the officers’ entry, an officer
had observed persons entering and leaving the building.
Significantly, at the time of entry, the door through which
customers entered was open, the garage door was open, and
the establishment was still open for business.
6                                                 No. 03-1238

  That Sandoval-Vasquez’s business may have been in the
process of closing does not help him, as the fact remains
that the business was still open when the officers entered.
Our decision in United States v. Swart, 679 F.2d 698 (7th
Cir. 1982), therefore, does not assist Sandoval-Vasquez.
There, we ruled that officers’ entry into a business they
knew was closed violated the Fourth Amendment. In this
case, however, the officers entered an open business.
  Sandoval-Vasquez also attempts to distinguish Tolar on
the basis that the officers here entered the premises with
their weapons drawn, yelling that they were police officers
and ordering the occupants against a wall. The officers’
entry in Tolar, in contrast, was peaceful. Sandoval-Vasquez
thus maintains that in addition to entering the business
shortly before it closed, the officers’ manner of entry into his
business rendered the entry unlawful. See Wilson v.
Arkansas, 514 U.S. 927, 934 (1995) (holding that knock-
and-announce principle is an element of the Fourth Amend-
ment reasonableness inquiry because “we have little doubt
that the Framers of the Fourth Amendment thought that
the method of an officer’s entry into a dwelling was among
the factors to be considered in assessing the reasonableness
of a search and seizure”).
  We agree with the district court that the officers’ manner
of entry was not unreasonable. Before they entered, the
officers knew that a van parked inside the premises con-
tained a significant quantity of cocaine, which Sandoval-
Vasquez’s counsel acknowledged likely had a street value of
at least several hundred thousand dollars. Even though the
officers had not received information that anyone on the
premises possessed a weapon, we do not think it was
unreasonable for the officers to protect themselves and the
persons inside by entering with a show of force. See United
States v. Morton, 17 F.3d 911, 912-13 (6th Cir. 1994).
Entering by announcing their status as police officers and
with weapons drawn was a reasonable precaution to take in
No. 03-1238                                                 7

light of the large quantity of drugs at stake and no guaran-
tee as to how the occupants might react.


  2. Voluntariness of Consent
  Sandoval-Vasquez also argues that the district court
erred when it found he voluntarily consented to the search
of the van. The Fourth Amendment’s prohibition against
warrantless searches does not apply when law enforcement
officials receive voluntary consent to search. Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); United States v.
Grap, 403 F.3d 439, 442 (7th Cir. 2005). The government
bears the burden of proving by a preponderance of the
evidence that consent was freely and voluntarily given.
Grap, 403 F.3d at 442. Whether consent is voluntary is a
question of fact dependent upon the totality of the circum-
stances. Schneckloth, 412 U.S. at 227; Grap, 403 F.3d at
442. In light of the fact-specific nature of this inquiry, we
review a district court’s finding that a defendant voluntarily
consented for clear error. United States v. Santiago, 428
F.3d 699, 704 (7th Cir. 2005). Factors we consider in
determining whether consent was voluntary include: (1) the
person’s age, intelligence, and education; (2) whether he
was advised of his constitutional rights; (3) how long he was
detained before he gave his consent; (4) whether his consent
was immediate, or was prompted by repeated requests by
the authorities; (5) whether any physical coercion was used;
and (6) whether the individual was in police custody when
he gave his consent. Id. at 704-05.
  The district court found that Sandoval-Vasquez know-
ingly and voluntarily consented to the search after Agent
Emigh’s arrival, and we decline to deem this finding was
clearly erroneous. Although the officers entered the busi-
ness with a show of force and placed other employees in
handcuffs almost immediately, the totality of the circum-
stances supports the district court’s finding that Sandoval-
Vasquez knowingly and voluntarily consented. Sandoval-
8                                                No. 03-1238

Vasquez initially declined to consent to a search, indicating
he knew of his right to refuse. After Agent Emigh arrived,
approximately forty minutes after the officers’ initial entry,
officers informed Sandoval-Vasquez of his constitutional
rights in Spanish, his primary language. He then received,
read, and signed a consent to search form written in
Spanish. At the time, Sandoval-Vasquez was fifty-seven
years old and was acting as a police informant, further
suggesting to the district court that he understood the
nature of his consent.
  In addition, the district court’s conclusion that Sergeant
McHugh did not threaten Sandoval-Vasquez to obtain his
consent was not clearly erroneous. We will only reverse a
district court’s credibility determination upon a finding of
clear error, as the district court has the opportunity to
observe testimony and to evaluate a witness’s demeanor.
United States v. Williams, 209 F.3d 940, 943 (7th Cir. 2000).
Here, Sandoval-Vasquez testified at the suppression
hearing that Sergeant McHugh threatened that his family
would be taken away if he did not sign the consent form;
Sergeant McHugh testified that he never made such a
threat. In addition, Sandoval-Vasquez did not include the
alleged threat in an affidavit submitted to the court and did
not seek to add the alleged threat when afforded the
opportunity to change his affidavit. After considering both
parties’ testimony, the district court found that Sandoval-
Vasquez lied about being threatened. This finding is
supported by the evidence, and we accord it deference.
  As further support for a finding that the consent was
voluntary, the district court pointed to Sandoval-Vasquez’s
additional cooperation with law enforcement beyond merely
signing the consent form. When officers reported having
trouble opening the trap compartment, Sandoval-Vasquez
described to them in more detail the method he had ob-
served others use to open the trap. He even attempted to
help the officers open the compartment. Sandoval-Vasquez
No. 03-1238                                                9

continued to cooperate with Agent Emigh, later directing
him to another location where he knew that cocaine had
been received in the past. On balance, then, the district
court’s conclusion that Sandoval-Vasquez voluntarily
consented to the search was not clearly erroneous.
  Finally, we note that Sandoval-Vasquez argued that any
consent he gave after Agent Emigh’s arrival was insuffi-
cient to “purge the taint” of what he contends was an illegal
entry into his business. See Brown v. Illinois, 422 U.S. 590,
603-05 (U.S. 1975); United States v. Cellitti, 387 F.3d 618,
623 (7th Cir. 2004). That principle is inapplicable, however,
as we have already concluded that the officers’ initial entry
was lawful. See United States v. Marshall, 157 F.3d 477,
484 (7th Cir. 1998).


B. Minor Participant Adjustment
  Sandoval-Vasquez also contends the district court erred
when it declined to grant him a downward adjustment for
playing a minor role in the offense. The United States
Sentencing Guidelines provide for a two-level decrease in
offense level when a defendant was a “minor participant” in
criminal activity. U.S.S.G. § 3B1.2(b) (2002). The commen-
tary to this provision defines a “minor participant” as a
defendant “who plays a part in committing the offense that
makes him substantially less culpable than the average
participant” and “who is less culpable than most other
participants, but whose role could not be described as
minimal.” U.S.S.G. § 3B1.2 cmt. nn. 3(A) & 5. The defen-
dant has the burden of showing he is entitled to the adjust-
ment by a preponderance of the evidence, and we review a
district court’s denial of a minor participant adjustment for
clear error. United States v. Rodriguez-Cardenas, 362 F.3d
958, 960 (7th Cir. 2004).
  Sandoval-Vasquez argues he was less culpable than other
participants because he received a flat fee for storing the
10                                               No. 03-1238

cocaine and thus had no stake in the success of the cocaine’s
sales. He also maintains the other participants in the drug-
selling scheme could have requested the van’s return at any
time. The Presentence Investigation Report prepared by the
United States Probation Office recommended that
Sandoval-Vasquez receive the minor role adjustment he
seeks. Nonetheless, the district court chose not to impose it.
Although we recognize the appeal of Sandoval-Vasquez’s
position, we cannot say that the district court’s decision not
to award the adjustment was clearly erroneous.
  Sandoval-Vasquez provided the facility that held the
cocaine for sale and the location for the loading and off-
loading of a significant quantity of drugs. He also knowingly
allowed other participants in the drugs sales operation
access to the cocaine. Moreover, he received $10,000 for his
participation, an amount the district court found signifi-
cant. The district court’s conclusion that Sandoval-Vasquez
was at least equally culpable as his co-defendant in the
crime of possession with intent to distribute was not clearly
erroneous. See United States v. McKee, 389 F.3d 697, 700
(7th Cir. 2004) (upholding minor role participant where
defendant was “essential component” to the crime).




C. Booker Challenge
  Finally, Sandoval-Vasquez contends we should remand
his sentence for reconsideration. Acting before the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220
(2005), the district treated the Sentencing Guidelines as
mandatory when it sentenced Sandoval-Vasquez to 235
months’ imprisonment. Because Sandoval-Vasquez did not
raise a Sixth Amendment or related objection to his sen-
tence before the district court, we review his challenge for
plain error. United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005). The government agrees that on this record, we
No. 03-1238                                              11

cannot be certain that the district court would have im-
posed the same sentence with the discretion permitted by
Booker. The district court recognized that Sandoval-
Vasquez was fifty-seven years old at the time of sentencing,
and both the government and district court commented on
the severity of the then-mandatory guideline range. The
district court granted a downward adjustment and then
imposed a sentence at the lowest end of the resulting
guidelines range. Accordingly, in accordance with the
procedure we set forth in United States v. Paladino, 401
F.3d 471 (7th Cir. 2005), we order a limited remand to ask
the sentencing judge whether, if required to resentence, he
would impose his original sentence.


                   III. CONCLUSION
  For the foregoing reasons, we AFFIRM Sandoval-Vasquez’s
conviction and order a LIMITED REMAND of his sentence in
accordance with the procedure we set forth in United States
v. Paladino.
12                                        No. 03-1238

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—1-26-06
