                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4025


UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

          v.

UMBERTO ALMAZAN RUBIO,

                Defendant-Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cr-00191-CCE-1)


Submitted:   July 9, 2013                 Decided:   July 24, 2013


Before AGEE, GREGORY, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Greensboro, North
Carolina, Mireille P. Clough, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Umberto Almazan Rubio (“Rubio”) pled guilty to possession

of a firearm by an illegal alien in violation of 18 U.S.C.

§§ 922(g)(5)     and     924(a)(2).        The     district     court   imposed       a

within-Guidelines sentence of 24 months’ imprisonment.                        Rubio’s

guilty plea was conditioned on his ability to appeal the denial

of his motion to suppress the evidence seized pursuant to a

search warrant.         On appeal, he contends that the district court

erred   in    denying    his    motion    to   suppress    because      the     search

warrant      application       included    stale     information.          He      also

contends that his sentence is unreasonable because it is greater

than necessary to accomplish the goals of 18 U.S.C. § 3553(a).

For   the    reasons    that    follow,   we     affirm   the   judgment      of    the

district court.



                                          I.

      On April 25, 2012, deputies of the Guilford County, North

Carolina Sheriff’s Department executed a search warrant looking

for evidence of cockfighting at 5101 Watlington Road, Lot A,

Greensboro, North Carolina, a residence known to have been used

for cockfighting in 2009.           The warrant also allowed a search of

the persons of Rubio, Jose Homar Olvera Ramos (“Ramos”) (who is

related to Rubio’s wife), and their vehicles.



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     The search warrant application included the affidavit of

Deputy   Sheriff       S.D.     Jarrell     (“Deputy    Jarrell”),     a    nine-year

veteran of the Guilford County Sheriff’s Department.                       As part of

his affidavit, Deputy Jarrell set forth the fact of a prior

search at the Watlington Road residence on May 14, 2009, and

that Ramos, who was specifically listed in the search warrant at

issue in this case, had been indicted on October 5, 2009, for

cockfighting.          Deputy Jarrell noted that Ramos had entered a

guilty plea to misdemeanor animal cruelty on February 14, 2011,

and been placed on probation for eighteen months.                     One condition

of Ramos’s probation was that he not possess any chickens.

     Deputy         Jarrell’s    affidavit       also   chronicled     various        law

enforcement contacts at the Watlington Road residence throughout

2011 and 2012, during which several officers had visited the

premises      and    observed     signs     of   chickens     and   roosters     being

raised for cockfighting:

     •   On    July     1,    2011,   Officer     Garrard     of    Guilford    County

         Animal Control visited the premises to determine if a dog

         had been vaccinated for rabies.                 While on the premises,

         she    observed      over    150   roosters    and    chickens,       some    of

         which had combs trimmed, spurs cut, and were tethered.

     •   On December 2, 2011, Deputy Jarrell was at the residence

         to serve an unrelated warrant and observed chickens.                         No

         action was taken, however, because at that time, Deputy

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         Jarrell was unaware that a resident of the premises was

         on probation and not allowed to have chickens.

     •   On March 21, 2012, Guilford County Deputy Crisp visited

         the    residence    to     investigate      a    noise   complaint     and

         observed at least one hundred roosters on the premises.

     •   On March 26, 2012, Guilford County Deputy Murphy observed

         a tethered rooster with a trimmed comb and wattle on the

         premises.

     •   On    April   1,   2012,   officers       were   again   called   to   the

         residence     in   reference    to    a    noise   disturbance.        The

         complainant stated that there were chickens and roosters

         at the residence continually making noise.

Deputy Jarrell concluded the search warrant application with a

summary of the events that occurred nine days before the search

warrant was issued and executed:

              On April 16, 2012[,] yet another noise
              disturbance   was   called    in   for   5101
              Watlington Rd, Lot A, Greensboro.        This
              applicant was the responding officer.    When
              this applicant pulled into the driveway,
              Jose Omar Olvera Ramos’ Beetle, tag ADY6883,
              was parked in the driveway.    This applicant
              spoke with Umberto Rubio’s wife, Maralee
              Mar, and explained that this applicant had
              received a noise complaint. Mrs. Mar stated
              that it was time for her to feed the birds,
              that’s why they were making so much noise.

              This applicant walked over to where the
              chicken coop was and observed a rooster that
              had its comb and wattle cut. This applicant
              also observed two wooden anchors in the

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            ground with tether straps attached to same.
            These wooden anchors are used to tether the
            roosters.   In the make shift fence, this
            applicant observed a clear, dark colored
            bottle that appeared to be an antiseptic
            bottle.

            All of the items combined are indicative
            that the residents are training the roosters
            for fighting.    Mrs. Mar stated to me that
            her husband enjoyed cockfighting and that he
            and her brother-in-law, Jose Omar Olvera
            Ramos,    just   got    back  from    selling
            approximately 60 roosters and chickens in
            Mexico   over  the   weekend.    There   were
            approximately eighty (80) roosters, hens,
            cockerels, and chicks.

(J.A. 79.)

     When the search warrant was executed on April 25, 2012,

officers found three firearms in the residence, as well as two

identification documents with Rubio’s photograph.           It was later

determined    that   one   of   the       identification   cards   was   a

counterfeit United States Alien Resident Registration Card.

     Rubio was arrested and transported to the Guilford County

Sheriff’s Department, where he was advised of his Miranda rights

in Spanish.     Rubio waived his rights and agreed to speak with

officers.     He admitted ownership of two of the three firearms.

Rubio was determined to be a native and citizen of Mexico, and

present in the United States without having been admitted or

having obtained the permission of the Attorney General or the

Director of Homeland Security.



                                      5
            On    May    29,    2012,    Rubio       was   indicted       on    one     count    of

possession of a firearm by an alien, in violation of 18 U.S.C.

§§ 922(g)(5) and 924(a)(2), and one count of possession of a

forged       and       counterfeit      alien    registration            receipt      card,      in

violation of 18 U.S.C. § 1546(a).                            He subsequently moved to

suppress         the    evidence       seized    in    the    April      25,     2012    search,

contending that the search warrant lacked probable cause because

it contained stale information from 2009.                                The United States

District Court for the Middle District of North Carolina denied

Rubio’s          motion,      finding    that    the       warrant       was    supported        by

probable cause and there was no staleness because the affidavit

included information that was obtained “just a few days before

the search warrant was sought.”                  (J.A. 72.)

       On August 15, 2012, Rubio entered a conditional guilty plea

on    the    count       of    possession       of    a    firearm       by    an    alien,     but

reserved         the    right    to     appeal       the   denial     of       his    motion     to

suppress.

       Rubio appeared for sentencing on November 27, 2012.                                      His

advisory Guidelines range was 24 to 30 months’ imprisonment, and

he requested a sentence below the Guidelines range, arguing that

his   early        admission      of    wrongdoing,         lack    of    criminal       record,

family needs, and passive possession of the firearms warranted a

below-Guidelines sentence.                  The district court denied Rubio’s



                                                 6
request and imposed a sentence at the low end of the Guidelines

range, explaining as follows:

            I’ve considered the argument that a sentence
            below    the    guideline   range    might   be
            appropriate because of Mr. Rubio’s lack of
            criminal    record,   his   family   and   work
            stability, the passive possession of the
            firearm    and    his   early   statement    of
            responsibility      to     law     enforcement.
            Certainly those factors are important.        I
            think they do justify a sentence at the low
            end of the guideline range, but because of
            the number of guns, I don’t know that – I
            don’t feel comfortable going below the
            guideline range.

            It is obviously a serious offense, and given
            that he did admit to personally possessing
            two of the guns, and there was a third one
            there, I think that a sentence within the
            guideline range is needed to reflect the
            seriousness of the offense.

(J.A. 149–50.)      Rubio was sentenced to 24 months’ imprisonment

and a two-year term of supervised release.

     He now appeals, and we have jurisdiction pursuant to 18

U.S.C. § 3742(a) and 28 U.S.C. § 1291.



                                   II.

     Rubio raises two central issues on appeal.           First, Rubio

contends that the district court erred in denying his motion to

suppress because the affidavit in support of the search warrant

contained   stale   information.    Second,   Rubio   argues   that   his

sentence is unreasonable because it is greater than necessary to


                                    7
accomplish the goals of 18 U.S.C. § 3553(a).                                We hold that the

district court did not err in either respect.



                                               A.

       We first address Rubio’s claim that his motion to suppress

was    wrongly     denied    on    grounds         of     staleness.          We    review   the

factual      findings     underlying       a    motion          to    suppress      ruling   for

clear    error,     and   the      legal    determinations              de    novo.       United

States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005).                                     “When

such a motion is denied, we review the evidence in the light

most favorable to the government.”                       Id.

       Rubio argues that the search warrant relevant to his case

is    invalid      because    the     supporting               affidavit      included     stale

information.        Rubio specifically references the dates of May 14,

2009    (prior      search    at     the    Watlington               Road    residence),     and

October      5,    2009      (indictment            of     Ramos       for     cockfighting),

contending that such events occurred nearly three years before

the execution of the search warrant, and that the warrant thus

“lacked      any     information       of          cockfighting             close    to   [its]

execution.”        (Appellant’s Br. 7.)

       The    district       court    rightly            rejected       Rubio’s       staleness

argument.         As we have made clear, “the vitality of probable

cause cannot be quantified by simply counting the number of days

between the occurrence of the facts supplied and the issuance of

                                               8
the affidavit.”      United States v. Rhynes, 196 F.3d 207, 234 (4th

Cir. 1999) (brackets omitted); see also United States v. Spikes,

158   F.3d    913,   923   (6th    Cir.       1998)   (staleness    not   measured

“solely by counting the days on a calendar”).                    “Rather, we must

look to all the facts and circumstances of the case, including

the nature of the unlawful activity alleged, the length of the

activity, and the nature of the property to be seized.”                     United

States v. Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (quoting

Rhynes, 196 F.3d at 234).

      Here, under the totality of the circumstances, there was

ample evidence to support a finding of probable cause.                      Deputy

Jarrell’s supporting affidavit referenced the May 2009 search

warrant and the October 2009 arrest of Ramos and his subsequent

conviction for animal cruelty, which reflected the continuing

nature   of   alleged      criminal   activity        at   the   Watlington     Road

residence.      As recounted in the search warrant affidavit, on

several occasions from July 2011 until April 2012, officers were

repeatedly     dispatched     to    the       Watlington    Road    residence     to

investigate noise complaints related to the numerous roosters,

chickens, and other fowl that were kept there.                      The officers

detailed their observations of roosters that had their combs and

wattles cut, wooden stakes in the ground which were used to

tether the roosters, and bottles that contained antiseptic for

the birds.      Most significantly, Deputy Jarrell responded to a

                                          9
noise complaint on April 16, 2012 – nine days prior to the

execution of the search warrant – and observed a rooster that

had its comb and wattle cut, wooden anchors with tether straps,

and an antiseptic bottle, items “all [of which] combined are

indicative [of] training the roosters for fighting.”                      (J.A. 79);

see Emery v. Holmes, 824 F.2d 143, 149 (1st Cir. 1987) (“Where

recent    information        corroborates      otherwise     stale      information,

probable cause may be found.”).              In light of all of these facts,

we cannot agree with Rubio that there was insufficient probable

cause to search the Watlington Road residence.                          We therefore

conclude that the district court did not err in denying Rubio’s

motion to suppress.



                                         B.

       Rubio also contends that the district court should have

granted his request for a sentence below the advisory Guidelines

range    because     he    presented    mitigating      evidence       demonstrating

that a sentence within the advisory Guidelines range was greater

than necessary.           We review Rubio’s sentence under a deferential

abuse-of-discretion         standard,    see     Gall   v.   United     States,   552

U.S.     38,    51        (2007),      for     procedural        and     substantive

reasonableness.         Id.; United States v. Lynn, 592 F.3d 572, 575

(4th    Cir.   2010).        If   a   sentence    is    within    the    appropriate

Sentencing Guidelines range, we presume that the sentence is

                                         10
reasonable.      United States v. Mendoza-Mendoza, 597 F.3d 212, 217

(4th Cir. 2010).       Such a presumption is rebutted only by showing

“that the sentence is unreasonable when measured against the [18

U.S.C.] § 3553(a) factors.”              United States v. Montes-Pineda, 445

F.3d 375, 379 (4th Cir. 2006).

     We    conclude     that      the    district      court   committed   neither

procedural      nor   substantive        error    in   sentencing.       The   court

accurately calculated and considered Rubio’s Guidelines range,

heard argument from counsel for a sentence below the advisory

Guidelines range, and gave Rubio an opportunity to address the

court.       The court fully considered all of the reasons Rubio

offered    in    support     of    his    argument      for    a   below-Guidelines

sentence — his early admission of wrongdoing, lack of criminal

record, family needs, and passive possession of the firearms —

but explained that the within-Guidelines sentence was warranted

in light of the seriousness of the offense.                    On appeal, counsel

does not offer any grounds to rebut the presumption that Rubio’s

within-Guidelines sentence is substantively reasonable, and our

review reveals none.         The district court thus did not abuse its

discretion in sentencing Rubio.



                                          III.

     For the foregoing reasons, we affirm the judgment of the

district   court.       We   dispense      with     oral   argument    because   the

                                           11
facts   and   legal    contentions    are   adequately   presented    in   the

materials     before   this   Court   and   argument   would   not   aid   the

decisional process.



                                                                     AFFIRMED




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