                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 24 2009

                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS


                            FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,
                                                  No. 08-30346
             Plaintiff-Appellee,                  No. 08-30347

             v.                                   D.C. No. CR-06-30044-PA
                                                  D.C. No. CR-06-30044-02-PA
 RICK SCHLOTZHAUER and                            MEMORANDUM *
 SABINA SCHLOTZHAUER,

            Defendants-Appellants.


                      Appeal from the United District Court
                           for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                     Argued and Submitted November 6, 2009
                                Portland, Oregon

Before:      FISHER and PAEZ, Circuit Judges, and FOGEL, District Judge**

      In these consolidated appeals, Appellants contend that the district court erred

in denying their joint pretrial motions to suppress evidence and for a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and in failing to address

each of their pretrial motions individually. Appellant Rick Schlotzhauer (“Rick”)


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
also contends that his sentence violates the Eighth Amendment and that the

increase in the mandatory minimum sentence applicable to him based on judicial-

fact-finding of a prior felony offense violated his Fifth and Sixth Amendment

rights. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we

affirm.

      First, Appellants contend that the government agents violated their Fourth

Amendment rights when the agents posed as real estate purchasers and toured a

property that Appellants had hired a realty company to sell. We review de novo a

district court’s denial of a motion to suppress. United States v. Meek, 366 F.3d

705, 711 (9th Cir. 2004). The district court did not err in denying Appellants’

suppression motion. Appellants’ decision to open the property to public view by

listing it for sale with the realty company manifested little, if any, subjective

expectation of privacy, and whatever expectation of privacy they may have held

subjectively was not objectively reasonable. See Kyllo v. United States, 533 U.S.

27, 33 (2001) (“A Fourth Amendment search does not occur–even when the

explicitly protected location of a house is concerned–unless ‘the individual

manifested a subjective expectation of privacy in the object of the challenged

search,’ and ‘society [is] willing to recognize that expectation as reasonable.’”)

(citing California v. Ciraolo, 476 U.S. 207, 211(1986)(emphasis in original))).



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Because there was no Fourth Amendment search, the reasonableness of the agents’

ruse in posing as prospective buyers is immaterial.

      Second, Appellants challenge the district court’s denial of their motion for a

Franks hearing. We review this ruling de novo. Meek, 366 F.3d at 716. A Franks

hearing is required when a defendant makes “a substantial preliminary showing

that a false statement was deliberately or recklessly included in or omitted from a

warrant affidavit, and that the false statements or omissions were material to the

finding of probable cause.” Id. Appellants have not shown that the agent’s alleged

false statements and omissions were material to the magistrate judge’s probable

cause determination. Even without the challenged statements and omissions, there

was substantial evidence from which the magistrate judge could conclude that

there was probable cause to search Appellants’ three properties for evidence of the

manufacture of marijuana. The warrant affidavit included a confidential

informant’s reports of illegal conduct at the searched properties, federal agents’

first-hand observation of items at the Ridge Vista property consistent with growing

operations, documents establishing that Appellants owned the properties and

records of Rick’s past arrests and of a conviction related to manufacturing

controlled substances.

      Third, Appellants contend that the district court erred by failing to rule on


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two of their pretrial motions and by ruling on five others without addressing the

merits. Appellants cite no authority for the proposition that a district court

commits reversible error merely by omitting to rule on every pre-trial motion

before a criminal trial. Moreover, Appellants have not argued that they suffered

any prejudice from the alleged failure to rule. Appellants’ position therefore is

without merit.

      Rick contends that his mandatory minimum sentence of twenty years under

21 U.S.C. § 841(b) for conspiring to manufacture 1000 or more marijuana plants

violates the Eighth Amendment. We review de novo an appellant’s Eighth

Amendment challenge to his sentence. United States v. Meiners, 485 F.3d 1211,

1212 (9th Cir. 2007) (per curiam). Although Rick’s sentence is severe, his past

and present crimes are serious, and his sentence is not grossly disproportionate.

See United States v. Albino, 432 F.3d 937, 938 (9th Cir. 2005) (per curiam)

(“Generally, as long as the sentence imposed on a defendant does not exceed

statutory limits, this court will not overturn it on Eighth Amendment grounds.”

(quoting United States v. Parker, 241 F.3d 1114, 1117 (9th Cir. 2001) (internal

quotations omitted))).

      Finally, Rick argues that the district court violated his Fifth and Sixth

Amendment rights by increasing his mandatory minimum sentence from ten to


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twenty years based on judicial fact-finding that he previously had been convicted

of a felony drug offense. This argument is foreclosed by United States v. Valle-

Montalbo, 474 F.3d 1197, 1202 (9th Cir. 2007).

      AFFIRMED.




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