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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30172                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                               December 18, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

LAVAR ELLIOTT KITTELBERGER, also known as Lavar E. Kittelberger;
ANTHOWN LATARIUS SWAN; ORLANDO BRIAN WASHINGTON, also
known as Orlando Washington,

              Defendants - Appellants




                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:13-CR-57-3


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
WIENER, Circuit Judge:*
       Defendants-Appellants Lavar Elliot Kittelberger, Anthown Latarius
Swan, and Orlando Brian Washington were convicted by a jury for their
participation in a fraudulent check cashing conspiracy. Appellants raise the
following errors on appeal: (1) The district court erred in denying their motions
to suppress, (2) their convictions under 18 U.S.C. § 514(a)(2) should be vacated


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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under our precedent, and (3) the district court erred by applying United States
Sentencing Guidelines § 3B1.1(c) to Appellant Kittelberger’s sentence because
no evidence in the record supports the enhancement.
                      I.      FACTS AND PROCEEDINGS
A.    Factual background
      In November 2012, Huey Decou, a security officer for a local branch of
First National Bank in Crowley, Louisiana, contacted Lafayette Police
Department Detective Todd Borel and informed him that a man named Roy
Hawks had successfully cashed a fraudulent check. Detective Borel located
Hawks, who agreed to cooperate with the police. Hawks told Detective Borel
that a group of men had approached him at a homeless shelter in Lafayette,
Louisiana, and offered him $300 per check that he cashed for them. Hawks
revealed that the men had arranged to meet him at the homeless shelter the
next morning so he could cash more checks; and, they had asked him to recruit
other homeless individuals to cash checks for them.
      At about 8:00 a.m. the next day, Detective Borel and his support team
established surveillance near the homeless shelter. At approximately 8:30
a.m., they observed Hawks meet with someone in a white Chevrolet Malibu
with Florida plates. The officers conducted a license check on the vehicle and
determined that it was registered to the Enterprise car rental company.
Enterprise confirmed that the car was leased to “Orlando Washington.” The
officers followed the Malibu to the Staybridge Inn where they observed it pull
into the hotel’s parking lot. It remained parked in the front drive for a few
moments, then departed without picking up or dropping off any passengers.
The surveillance team lost sight of the Malibu shortly after it left the parking
lot. At that point, Detective Borel and Detective Broussard returned to the
Staybridge Inn to determine if “Orlando Washington” was registered there.


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The hotel required them to obtain a court subpoena, which they did. At around
11:45 a.m., the hotel confirmed that Orlando Washington had rented Suite 206.
      At approximately the same time – 11:45 a.m. – Detective Bajat relocated
the Malibu. He observed the vehicle as it stopped at various places where its
occupants spoke to different individuals, most of whom appeared to be
homeless. After receiving a radio report from an officer expressing concern
that their surveillance of the Malibu might have been detected, Sergeant Scott
Morgan decided to order a traffic stop of the Malibu to determine whether the
driver was Orlando Washington. Before initiating the traffic stop, however,
Sergeant Morgan decided that his officers should secure Suite 206 until a
search warrant could be obtained. His reasoning, as explained during the
suppression hearing, was two-fold: (1) Stopping the Malibu might permit its
occupants to alert any individuals in the suite of the ongoing investigation, and
(2) any individuals in the suite might become concerned if the Malibu’s
occupants failed to check in or arrive back at the hotel by a particular time. In
his view, either event could expose the officers stationed at the hotel to injury
or afford the suite’s occupants an opportunity to destroy evidence.
      At approximately 11:54 a.m., officers stopped the Malibu and identified
the men in the vehicle as Orlando Washington and Kwame Cunningham.
After they received confirmation that the Malibu had been stopped, Detectives
Borel, Broussard, and Rummel, along with other officers, knocked on the door
of Suite 206. When no one answered, the officers entered the suite using a key
provided by the hotel staff. The officers spread out to secure the suite’s several
rooms, and they found Swan and a woman in bed in one of the rooms.
Kittelberger arrived while the officers were securing the premises.
Kittelberger, Swan, and the unidentified woman were Mirandized and
transported to the police station for questioning.


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      About thirty minutes after the officers first entered the suite, Detective
Broussard returned to the station to prepare an application for a warrant to
search it. Trooper Frank Garcia and Detective Rummel remained in the living
room area to ensure that nothing was disturbed while they waited for a search
warrant. At 2:05 p.m., a state court judge issued warrants authorizing the
search of Suite 206 as well as two vehicles associated with Washington – the
Malibu and a Toyota Camry. The officers’ subsequent investigation confirmed
that Kittelberger, Swan, and Washington, together with individuals working
with them, had participated in a fraudulent check cashing conspiracy.
B.    Indictment and district court proceedings
      Swan, Washington, and Kittelberger were indicted by a grand jury on
the following offenses: (1) one count of violating 18 U.S.C. § 1349, conspiracy
to defraud a financial institution; (2) eight counts of violating 18 U.S.C. §
514(a)(2), fictitious obligations; (3) one count of violating 18 U.S.C. § 1708,
possession of stolen mail; and (4) one count of violating 18 U.S.C. § 1028A
(a)(1), aggravated identity theft.
      Swan filed a motion to suppress evidence recovered from Suite 206,
asserting that the officers involved in the investigation lacked permission and
legal authority to enter the room.        Washington filed a similar motion to
suppress, contending that the officers’ warrantless entry violated his Fourth
Amendment rights and that the evidence seized from Suite 206 was
inadmissible. Kittelberger orally joined in the motions to suppress. After
conducting an evidentiary hearing, the district court denied the motions in a
memorandum order for the following reasons: (1) The warrantless entry was
justified by exigent circumstances, namely, that the Malibu’s occupants could
have warned the individuals in Suite 206 once the officers initiated a stop of
the Malibu, and (2) even if the officers’ warrantless entry into Suite 206
violated the Fourth Amendment, excluding the evidence would be improper
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because the government had established by a preponderance of the evidence
that it would have obtained the evidence even if no misconduct had taken
place. 1
       The case proceeded to a five-day jury trial. The jury found Swan and
Washington guilty on all counts of the indictment, save the one for aggravated
identity theft. The jury found Kittelberger guilty on all counts except three
counts of fictitious obligations. Washington, Kittelberger, and Swan timely
appealed their convictions and sentences, asserting that the district court
erred in denying their motions to suppress. On appeal, Kittelberger and Swan
challenge their convictions under 18 U.S.C. § 514(a)(2), claiming that their
conduct does not support convictions under our precedent. 2 Kittelberger also
appeals the district court’s application of a two-level enhancement to his
sentence under U.S.S.G. § 3B1.1(c), claiming that no evidence in the record
supports such enhancement.
                                 II.    ANALYSIS
A.     Denial of motions to suppress
       We review the district court’s findings of fact on a motion to suppress for
clear error, and we review its conclusions of law de novo. A factual finding is
not clearly erroneous if it is plausible in light of the record as a whole. 3 We
view the facts underlying the suppression determination in the light most
favorable to the prevailing party, which in this case is the government. 4 In an
appeal from the denial of a motion to suppress, we may consider the evidence
admitted at the suppression hearing and at trial. 5



       1 The district court cited Nix v. Williams, 467 U.S. 431, 444 (1984) as the legal
authority supporting this conclusion.
      2 Washington raised the Section 514(a)(2) issue in his reply brief.
      3 United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001).
      4 United States v. Runyan, 290 F.3d 223, 234 (5th Cir. 2002).
      5 United States v. Jones, 239 F.3d 716, 718 (5th Cir. 2001).

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       Appellants contend that the district court erred in finding that exigent
circumstances justified the warrantless entry of Suite 206, and that the court
should have granted their motions to suppress. Appellants also challenge the
district court’s conclusion that, assuming illegal entry, the evidence was
admissible because the officers would have discovered it even in the absence of
misconduct. We conclude it is unnecessary to determine whether the district
court’s finding of exigent circumstances is correct because we hold that the
evidence is admissible under the independent-source exception to the
exclusionary rule. 6
       1.     Independent source
       The exclusionary rule prohibits the introduction of (1) tangible materials
obtained as the result of an illegal search or seizure, and (2) testimony
concerning knowledge acquired during an unlawful search. 7 Evidence that is
otherwise suppressible under the exclusionary rule may be admitted if the
connection between the alleged illegality and the acquisition of the evidence is
so attenuated as to dissipate the “taint” of the unlawful police activity. 8 To
give effect to this principle, we apply different exceptions to the exclusionary
rule, one of which the government contends fits the facts of this case, viz., the
“independent source” doctrine. Under this exception to the exclusionary rule,
evidence obtained “independently” of the alleged illegal search is admissible.
       In Segura v. United States, the Supreme Court held that the police
officers’ illegal entry into a private apartment did not require the district court
to suppress evidence subsequently discovered at that same apartment




       6See United States v. Register, 931 F.2d 308, 311 (5th Cir. 1991) (refusing to consider
whether exigent circumstances justified the officers’ warrantless entry because the evidence
was admissible under the independent-source exception).
      7 See United States v. Hernandez, 670 F.3d 616, 620 (5th Cir. 2013) (citations omitted).
      8 Runyan, 290 F.3d at 466 (citation omitted).

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pursuant to a valid search warrant. 9 The Court specifically reserved ruling
whether evidence observed in plain view following the warrantless entry is
admissible under the independent source exception. The Court subsequently
addressed that question in Murray v. United States and held that evidence
obtained pursuant to an independently obtained search warrant was
admissible despite the fact that the police officers first observed the evidence
in plain view after their unlawful entry. 10 The Court further indicated that, to
admit evidence under the independent-source exception, the district court is
required to make two factual findings: (1) The judge would have issued the
warrant even if the supporting affidavit had not contained information
acquired during the illegal search, and (2) the police were not motivated to seek
a warrant by items observed during their illegal search. 11 We review the first
prong de novo, and the second prong for clear error. 12
       We conclude from the record that the affidavit for the search warrant
issued for Suite 206 did not contain any information derived from the initial
warrantless entry, so the first prong is satisfied. We therefore turn to the
second prong, viz., whether the district court correctly ruled that the
government presented evidence sufficient to conclude that the officers would
have sought a warrant to search Suite 206 irrespective of their initial
warrantless entry.




       9 468 U.S. 796, 814-15 (1984).
       10 487 U.S. 533, 541 (1988).
       11 Id. at 542-43 (“The ultimate question, therefore, is whether the search pursuant to

warrant was in fact a genuinely independent source of the information and tangible evidence
at issue.”); United States v. Bryan, No. 00-31491, 2001 WL 1468508, at *2 (5th Cir. Oct. 29,
2001) (“This circuit has developed a two-pronged test to determine whether the first and
second searches were independent enough to allow evidence from the second search to be
admitted.”).
       12 United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996) (citations omitted).

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       Our inquiry is complicated by the district court’s failure to make a
specific finding whether the officers were motivated to obtain a warrant by the
evidence they observed in Room 206. We generally require the district court,
as factfinder, to determine whether the initial illegal search “prompted or
motivated the officers’ decision to seek the warrant,” and we will remand the
case to the district court to make a finding. 13 On the other hand, we have
declined to remand cases in which the district court neglected to make written
findings on the officers’ motivation when (1) the record is sufficient to convince
us that “the theory of independent source supports admission of the evidence,”
and, (2) “[t]here is enough indication in the record for us to conclude that the
court accepted the version of the events relayed by detectives.” 14
       Here, the government argues that remand is not necessary because the
record supports admitting the evidence under the independent-source
exception. Washington counters that remand is necessary because: (1) the
government may not raise its independent-source argument for the first time
on appeal, and (2) the government failed to elicit any testimony at the
suppression hearing or during trial that would support the trial court’s
“passing reference” to the independent-source doctrine.                            We reject
Washington’s contentions. First, the government asserted in the district court
that the officers had developed probable cause to enter Suite 206 “entirely
independent” from items subsequently found inside of it. 15 In its brief in


       13  United States v. Restrepo, 966 F.2d 964, 972 (5th Cir. 1992); see Murray, 487 U.S.
at 543 (remanding to the district court to make a finding that the agents “would have sought
a warrant” even if they had not earlier entered the warehouse).
        14 Bryan, 2001 WL 1468508, at *3; see also United States v. Blount, 123 F.3d 831, 839

n.6 (5th Cir. 1997) (en banc) (declining to remand for consideration of the officers’ motivations
because no reasonable factfinder could conclude that the officers’ decision to seek the warrant
was prompted by evidence observed during their unlawful entry).
        15 The government did not waive its argument because it presented the independent-

source issue while the district court possessed the ability to rule on it. See Hassan, 83 F.3d
at 696.
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opposition to the motions to suppress, the government contended that evidence
observed in plain view during an initial warrantless entry need not be
suppressed if it is later recovered during a search pursuant to a valid warrant.
Second, although it is true that the government did not advance specific
“independent source” arguments during the suppression hearing, it did present
testimony consistent with its position that the evidence viewed in Suite 206
did not prompt the officers to seek a warrant.
       Based on our review of the record, we hold that the district court
correctly denied the motions to suppress, but we do so on the alternative
ground that the evidence is admissible under the independent-source exception
to the exclusionary rule. The district court heard testimony at the suppression
hearing that: (1) The affidavit accompanying the application for the search
warrant contained only information known to the officers before they entered
Suite 206, (2) the officers did not search Suite 206 prior to securing a warrant,
and (3) the officers’ only actions after entering Suite 206 were to verify that
there were no weapons present and no individuals hiding in the suite.
Moreover, the court concluded in its written order that, even assuming the
initial warrantless entry was unlawful, any evidence discovered during the
subsequent search was admissible because the government had demonstrated
that the police would have obtained the evidence even if no misconduct had
taken place. 16 The district court did not specify whether its conclusion was
based on the inevitable-discovery exception or independent-source exception.
As the record supports admissibility based on independent source, we may




       16 The district court cited Nix v. Williams as legal support for this conclusion. Nix
concerns the inevitable-discovery doctrine, which Appellants contend does not fit the facts of
this case. Because we may affirm on any basis supported by the record, we conclude it is
immaterial that the district court cited Nix for its conclusion. See United States v. Boche-
Perez, 755 F.3d 327, 333 (5th Cir. 2014) (citation omitted).
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                                       No. 14-30172
affirm the district court without remanding for further findings. 17 Based on
the record evidence and the district court’s written order, we hold that it did
not err by denying the motions to suppress because the evidence was
admissible under the independent-source exception.
B.     Convictions under 18 U.S.C. § 514(a)(2) – “Fictitious Obligations”
       The parties agree that Appellants’ convictions under 18 U.S.C. §
514(a)(2) must be vacated because they did not pass “fictitious obligations” as
that term is interpreted by this court. 18               We held in United States v.
Morganfield that although “[the defendants’] actions may well have created
‘forged’ or ‘counterfeit’ obligations . . . . [when] the underlying instruments are
facially genuine checks, § 514(a) is not applicable.” 19 Appellants passed facially
genuine checks so we vacate their convictions under 18 U.S.C. § 514(a)(2). We
do not remand the cases for resentencing, however, because vacating their
convictions does not affect Appellants’ advisory sentencing guidelines ranges. 20
C.     United States Sentencing Guidelines § 3B1.1(c)
       Kittelberger appeals the district court’s application of U.S.S.G. § 3B1.1(c)
to his sentence. He contends that the record is devoid of evidence that would



       17  See United States v. El-Mezain, 664 F.3d 467, 540 (5th Cir. 2011) (affirming district
court’s order denying a motion to suppress for reasons different than those cited by the
district court).
        18 The government contends that Washington waived his right to challenge his Section

514(a)(2) conviction because he failed to raise it in his opening brief. While that is generally
true, we conclude that the rule should not be applied under the particular circumstances of
this case. Washington raised the issue in his reply brief, no one disputes the merits of the
argument, and it would waste judicial resources to revisit the issue on a collateral challenge
to his sentence rather than ruling on it now.
        19 501 F.3d 453, 461-62 (5th Cir. 2007) (emphasis supplied).
        20 See United States v. Thomas, 690 F.3d 358, 372 (5th Cir. 2012). All counts of

conviction in this case were grouped, meaning that vacating the § 514(a)(2) convictions would
not affect the Appellants’ advisory guideline calculations. Although Kittelberger is serving
two years on his conviction for aggravated identity theft consecutively to the sentence
imposed on the other counts, vacating Kittelberger’s conviction on the Section 514(a)(2) count
does not affect his sentence for his aggravated identity theft conviction.
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                                       No. 14-30172
support a finding that he was “an organizer, leader, manager, or supervisor” of
the criminal activity. The government counters that not only did Kittelberger
fail to rebut the evidence contained in the presentence report, but the evidence
at trial confirms that Kittelberger had supervisory authority and directed the
activities of his co-conspirators.
       We review the district court’s application and interpretation of the
Advisory Sentencing Guidelines de novo, and we review its factual findings for
clear error. 21 A sentencing court’s decision to apply Section 3B1.1(c) on the
grounds that the defendant is an “organizer” is a factual finding which we
review for clear error. 22 We will conclude that a finding of fact is clearly
erroneous “only if a review of all the evidence leaves us with the definite and
firm conviction that a mistake has been committed.” 23
       Section 3B1.1(c) provides for a two-level increase in the offense level if
the defendant was an organizer or leader of at least one other participant in
the crime and he asserted control or influence over at least that one
participant. 24    When making factual findings for sentencing purposes, a
district court may consider “any information which bears sufficient indicia of
reliability to support its probable accuracy.” 25 Generally, a presentence report
bears “sufficient indicia of reliability to be considered as evidence by the
sentencing judge in making factual determinations.” 26 If the factual recitation
in the presentence report bears sufficient indicia of reliability, then the
“defendant [has] the burden of demonstrating that the [presentence report] is




       21United States v. Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011) (citations omitted).
       22United States v. Giraldo, 111 F.3d 21, 23 (5th Cir. 1997).
      23 Rodriguez, 630 F.3d at 380 (citation and quotation marks omitted).
      24 See United States v. Jobe, 101 F.3d 1046, 1065 (5th Cir. 1996) (citation omitted).
      25 United States v. Zuniga, 720 F.3d 587, 590-91 (5th Cir. 2013) (citation and quotation

marks omitted).
      26 Id. at 591 (citation and quotation marks omitted).

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inaccurate; in the absence of rebuttal evidence, the sentencing court may
properly rely on the [presentence report] and adopt it.” 27 Rebuttal evidence
must consist of “more than a defendant’s objection; it requires a demonstration
that the information is materially untrue, inaccurate, or unreliable.” 28
       Although Kittelberger asserts that “no evidence” in the record supports
the enhancement and that the district court erred by relying on the
presentence report, he did not introduce any rebuttal evidence that would show
that the information contained in the presentence report was materially
untrue, inaccurate, or unreliable. 29 The district court thus correctly relied on
it. 30 Moreover, the record demonstrates that Kittelberger drove one of the
participants to the bank to cash a fraudulent check, thereby controlling
another participant in the conspiracy. As Kittelberger has not demonstrated
that the enhancement is not plausible in light of the entire record, he fails to
show that the district court clearly erred in applying Section 3B1.1(c) to his
sentence.
                                 III.    CONCLUSION
       We affirm the district court’s order denying Appellants’ motions to
suppress, and we affirm that court’s application of Section 3B1.1(c) to
Appellant Kittelberger’s sentence. We vacate Appellants’ convictions under
Section 514(a)(2). The judgment of the district court is, in all other respects,
AFFIRMED.



       27 United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (citation and quotation
marks omitted) (emphasis supplied).
       28 Zuniga, 720 F.3d at 591 (citation and quotation marks omitted).
       29 At his sentencing hearing, Kittelberger’s counsel objected to probation’s

recommendation that the district court apply the § 3B1.1(c) sentencing enhancement on the
ground that the PSR did not “state any facts which support a finding, nor [did it] indicate to
us which one [organizer, leader, manager, or supervisor] he was.” But, Kittelberger did not
introduce any countervailing facts that would disprove the findings contained in the PSR.
       30 See United States v. Rodriguez, 602 F.3d 346, 363 (5th Cir. 2010).

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