     Case: 16-40167      Document: 00514034138         Page: 1    Date Filed: 06/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-40167                              FILED
                                                                            June 14, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

ELOY SILVA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-311-1


Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Eloy Silva appeals the denial of his motion to
suppress and his sentence. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 16-40167        Document: 00514034138        Page: 2     Date Filed: 06/14/2017



                                       No. 16-40167
                                         I.
                               FACTS AND PROCEEDINGS
         In March 2015, the U.S. Marshals Service executed an arrest warrant on
Silva for violation of his parole. After Silva was detained outside his trailer,
two U.S. Marshals with the Gulf Coast Violent Offender Task Force conducted
a protective sweep of the trailer to check for individuals inside. They did not
have a search warrant. During the sweep, one of the marshals opened a
compartment under a mattress and discovered a shotgun, ammunition, and
body armor. No one other than Silva was found in the trailer or on the property.
         Silva, a felon with an extensive criminal history, was charged with one
count of being a felon in possession of a firearm and ammunition, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Silva filed a motion to suppress the
firearm and ammunition, claiming that (1) the protective sweep was neither
reasonable nor permissible, and (2) alternatively, the officers exceeded the
scope of a lawful protective sweep. After conducting an extensive suppression
hearing, the district court denied Silva’s motion. He subsequently pleaded
guilty without a plea agreement.
         Silva’s presentence report reflected that his base offense level was 20
and, with a two-level reduction for acceptance of responsibility under
§ 3E1.1(a) of the United States Sentencing Guidelines (“Sentencing
Guidelines” or “USSG”), his total offense level was 18. 1 Silva’s extensive
criminal history yielded a total criminal history score of 31, placing him in
criminal history category VI. 2 As a result, Silva’s range of imprisonment under




         U.S. SENTENCING GUIDELINES MANUAL § 2K2.1 (U.S. SENTENCING COMM’N 2014).
         1

All references to the Sentencing Guidelines are to the 2014 edition, the edition applicable to
this case.
         2   U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N
2014).
                                              2
    Case: 16-40167         Document: 00514034138          Page: 3      Date Filed: 06/14/2017



                                        No. 16-40167
the Sentencing Guidelines was 57 to 71 months. 3 Silva objected to the PSR,
contending, inter alia, that he was entitled to a third level of reduction for
acceptance of responsibility under USSG § 3E1.1(b). The district court
overruled Silva’s acceptance-of-responsibility objection, adopted the PSR, and
sentenced him to 64 months of imprisonment followed by 3 years of supervised
release. Silva timely appealed.
                                               II.
                                          ANALYSIS
      Silva argues that the district court erred in denying his motion to
suppress        because    (1) the   protective      sweep     was     not   justified,   and
(2) alternatively, the officers exceeded the scope of a lawful protective sweep.
Silva also contends that the district court erred procedurally by failing to
reduce his offense level for acceptance of responsibility under USSG § 3E1.1(b).
   A. Motion to Suppress
      When considering a district court’s denial of a motion to suppress, we
review its findings of fact for clear error and its conclusions of law de novo. 4 “In
reviewing findings of fact, we view the evidence in the light most favorable to
the party prevailing below, which in this case is the Government.” 5
      A warrantless entry into a home is presumptively unreasonable. 6
Exigent circumstances, however, may justify a warrantless entry. 7 When a




      3   Id.
      4   United States v. Henry, 853 F.3d 754, 756 (5th Cir. 2017).
      5   Id. (quoting United States v. Andres, 703 F.3d 828, 832 (5th Cir. 2013)).
      6   United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).
      7   Id.
                                               3
     Case: 16-40167          Document: 00514034138          Page: 4    Date Filed: 06/14/2017



                                          No. 16-40167
person is subjected to a warrantless search, the government has the burden of
proving that the search was justified. 8
       “A ‘protective sweep’ is a quick and limited search of premises, incident
to an arrest and conducted to protect the safety of police officers or others.” 9
Such a sweep is justified only when there are “articulable facts which, taken
together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” 10 When determining
whether a protective sweep is justified, we consider the totality of the
circumstances surrounding the officers’ actions. 11 “[W]e ‘review the entirety of
the agents’ investigative tactics, particularly those leading up to the exigency
alleged to have necessitated the protective sweep.’” 12 If reasonable minds could
differ on the whether the sweep was warranted, we do not second-guess the
judgment of experienced law enforcement officers concerning the risks in a
particular situation. 13
       1. Was the Protective Sweep Justified?
       Silva contends that the protective sweep was not justified or permissible
because there were no exigent circumstances. He contends alternatively that
the agents created the exigent circumstances.
       The evidence before the district court demonstrated that the marshals’
protective sweep was justified. U.S. Marshal Alfredo Lujan, the “primary”



       8United States v. Garcia-Lopez, 809 F.3d 834, 838 (5th Cir.), cert. denied, 136 S. Ct.
2036 (2016).
       9   Maryland v. Buie, 494 U.S. 325, 327 (1990).
       10   Id. at 334.
       11   Howard, 106 F.3d at 74.
       12   Id. (quoting United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995)).
       13   United States v. Menchaca-Castruita, 587 F.3d 283, 290 (5th Cir. 2009).
                                                 4
    Case: 16-40167     Document: 00514034138       Page: 5   Date Filed: 06/14/2017



                                   No. 16-40167
officer among the team of marshals that executed the warrant, testified that
he reviewed Silva’s criminal history before executing the arrest warrant. Lujan
described Silva’s criminal history as “pretty extensive.” His numerous
convictions included assault, aggravated kidnapping with a weapon, and
making a terroristic threat. At the time of the instant arrest, there were seven
outstanding warrants for Silva’s arrest—three for impersonating a peace
officer, at times with a weapon; three for “unlawful contract with a surety bond
company”; and one for violation of parole. Lujan also testified that he was
aware that Silva was a member of the Tango Blast gang, which “started [as]
small street gangs and ha[s] grown while in prison and ha[s] actually done
work for the cartels.” Lujan had also received information that there might be
a weapon in the trailer. Lujan testified that Silva’s mother, who it turned out
owned the trailer, was uncooperative with him regarding Silva’s whereabouts.
      When the officers arrived, Silva did not exit the trailer for more than one
minute. Lujan testified that, even though the marshals had no indication that
anyone else was inside the trailer, in light of his 13 years of experience, he
believed the trailer could still contain a safety risk to the officers. Further, U.S.
Marshal Ray Tamez, who conducted the sweep with Lujan, testified that they
conducted the sweep because they were concerned for their safety, specifically
that they could not be certain that no one else was inside the trailer.
      At the end of the suppression hearing, the district court concluded that
it was reasonable for the officers “to be concerned about other people who may
be affiliated with the Defendant who would want to help [him and] that might
still be in the trailer.” The court explained that someone else could have
been in the trailer and “could have stuck a gun out the window [and] shot at
the officers.” The district court ruled that, as a result, the protective sweep
was justified.


                                         5
     Case: 16-40167          Document: 00514034138       Page: 6     Date Filed: 06/14/2017



                                       No. 16-40167
       Given the testimony presented at the suppression hearing, Silva’s
criminal history, his gang affiliation, and the officers’ concern that someone
might have been inside the trailer with a weapon, the district court did not
clearly err in concluding that the officers were reasonably concerned about
their safety. When we view the evidence in the light most favorable to the
government, we are convinced that there were “articulable facts which, taken
together with the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene.” 14
       2. Did the Search Exceed the Scope of a Lawful Protective Sweep?
       In the absence of a search warrant, a protective sweep must be “quick
and limited” and “narrowly confined to a cursory visual inspection of those
places in which a person might be hiding.” 15 “The sweep lasts no longer than
is necessary to dispel the reasonable suspicion of danger and in any event no
longer than it takes to complete the arrest and depart the premises.” 16
       Lujan testified that he spent about five to ten seconds in the trailer, and
Tamez testified that he spent about 35 to 40 seconds in the trailer. Silva
presented no evidence to contradict this testimony. Lujan testified that he
inspected every crawl space in which an individual could hide. He removed
cushions from two benches, looked under the mattress of a fold-out couch, and



       14 Buie, 494 U.S. at 334. Although Lujan testified that Silva “was still standing inside
the trailer when opening the door” and was standing on the outdoor stairwell leading
into the trailer, the district court assumed for purposes of the motion that Silva was outside
of the trailer when he was arrested. Silva asserts that because his arrest occurred outside of
the trailer, the warrantless search of the trailer was not permissible. This argument is
unavailing. See United States v. Maldonado, 472 F.3d 388, 393 (5th Cir. 2006) (“The
protective sweep doctrine may apply even if the arrest occurs outside the home.”), abrogated
on other grounds by Kentucky v. King, 563 U.S. 452 (2011).
       15   Buie, 494 U.S. at 327.
       16   Id. at 335–36.
                                              6
    Case: 16-40167    Document: 00514034138     Page: 7   Date Filed: 06/14/2017



                                 No. 16-40167
checked inside cabinets. Tamez found the firearm, ammunition, and body
armor after he saw a large, “waterbed-type mattress on top of wood, box [sic]
underneath.” He testified that he believed the wooden box under the mattress
was hollow and large enough for a person to hide inside, as it was “about seven,
eight feet in length, maybe six feet wide” and “[a]bout a foot and a half tall.”
He testified that nothing prevented him from lifting the mattress or the
plywood cover and that there was no locking mechanism on the wooden box.
      The district court concluded that, based on the agents’ testimony
regarding their experience finding individuals in small and hollowed-out
spaces, Tamez’s lifting of the mattress “was certainly justified” because it was
possible that a person could hide in the wooden compartment underneath it.
Lujan, who testified that he has conducted hundreds of protective sweeps for
more than 13 years, described the “very unique” hiding places in which he has
discovered individuals: “I have located individuals in hollowed-out water
heaters, false walls, false compartments in floor[s], false appliances, inside
dryers, inside washers, underneath sinks, underneath benches, underneath
clothing, closets. Anywhere where a person really wants to hide he could
actually make himself hide.” Tamez similarly testified that he has located
individuals in “[d]ressers, hollowed-out dressers, hidden compartments in
closets, underneath clothes, just a lot of places.” Lujan also testified that he
limits his protective sweeps to “areas that would be able to conceal a person.”
      Silva has failed to demonstrate that the district court clearly erred in
determining that the compartment under the mattress was large enough to
conceal a person, a conclusion that is amply supported by the uncontroverted
evidence in the record. In light of Lujan’s testimony regarding his experience
locating individuals in “very unique” places and Tamez’s unrefuted testimony
that he believed that a person could have been hiding in the wooden
compartment under the mattress, the search of the trailer, including the
                                       7
     Case: 16-40167          Document: 00514034138         Page: 8     Date Filed: 06/14/2017



                                         No. 16-40167
wooden box under the mattress, did not exceed the scope of a lawful
protective sweep. 17
   B. Acceptance of Responsibility
       Silva received a two-level reduction under USSG § 3E1.1(a), but he
contends that the district court erred in denying him a third reduction of one
level for acceptance of responsibility under § 3E1.1(b). He maintains that the
government improperly withheld a § 3E1.1(b) motion in retaliation for his
exercise of his constitutional rights to file a motion to suppress and to request
a hearing on it.
       We review a district court’s legal interpretations of the Sentencing
Guidelines de novo and its factual findings for clear error. 18 “A factual finding
is clearly erroneous only if, based on the entirety of the evidence, the reviewing
court is left with the definite and firm conviction that a mistake has been
made.” 19 We review “a district court’s refusal to reduce a defendant’s offense
level for acceptance of responsibility under USSG § 3E1.1 with a standard
‘even more deferential than a purely clearly erroneous standard.’” 20
        Section 3E1.1(b) provides for an additional one-level decrease to a
defendant’s base offense level for acceptance of responsibility if the following
are satisfied:


       17 See Garcia-Lopez, 809 F.3d at 839 (concluding that a protective sweep that involved
searching under a mattress in a trailer was permissible because “it was logical under the
specific facts of this case to suspect that a person might be hiding in a hollowed box spring”);
cf. United States v. Ford, 56 F.3d 265, 270 (D.C. Cir. 1995) (concluding that a search
underneath a mattress exceeded the scope of a permissible protective sweep because nothing
suggested that a person might have been hiding under the mattress and the searching agent
“testified that it would have been ‘[v]irtually impossible’ for someone to do so” (alteration in
original)).
       18   United States v. Castillo, 779 F.3d 318, 321 (5th Cir. 2015).
       19   Id.
       20 United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003) (quoting United
States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)).
                                                 8
     Case: 16-40167         Document: 00514034138         Page: 9    Date Filed: 06/14/2017



                                         No. 16-40167
       [1] the defendant qualifies for a decrease under subsection (a),
       [2] the offense level determined prior to the operation of subsection
       (a) is level 16 or greater, and [3] upon motion of the government
       stating that the defendant has assisted authorities in the
       investigation or prosecution of his own misconduct by timely
       notifying authorities of his intention to enter a plea of guilty,
       thereby permitting the government to avoid preparing for trial and
       permitting the government and the court to allocate their
       resources efficiently[.]
Amendment 775 to the Sentencing Guidelines, which became effective in
November 2013, states that “[t]he government should not withhold such a
motion based on interests not identified in § 3E1.1, such as whether the
defendant agrees to waive his or her right to appeal.” 21
       Before Amendment 775 took effect, panels of this court routinely
affirmed the denial of a one-level reduction under § 3E1.1(b) when the
government had to prepare for a suppression hearing. 22 It is now unclear,
however, “to what extent [Amendment 775] was meant to reject our
previous rule that a suppression hearing may justify withholding a Section
3E1.1(b) reduction.” 23
       We need not determine as a general matter whether, in light of
Amendment 775, the government may withhold a § 3E1.1(b) motion when, as


        U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 cmt. n.6 (U.S. SENTENCING COMM’N
       21

2014); United States v. Palacios, 756 F.3d 325, 326 (5th Cir. 2014) (per curiam).
       22  United States v. Delaurier, 237 F. App’x 996, 998 (5th Cir. 2007) (per curiam)
(concluding that the district court did not err in denying the defendant a third point for
acceptance of responsibility under § 3E1.1(b) because “the government was forced to spend
considerable time and effort defending the motion to suppress, and the defendant has not
demonstrated an improper motive behind the decision”); United States v. Cruz, 199 F.3d 438
(5th Cir. 1999) (per curiam) (“Because Santa Cruz did not enter his guilty plea until after the
district court held a hearing on his motion to suppress evidence, which required full
preparation of the Government and the allocation of the district court’s resources, the district
court did not err in denying an additional one-point reduction for acceptance of responsibility
under § 3E1.1(b)[.]”); see also United States v. Gonzales, 19 F.3d 982, 984 (5th Cir. 1994) (per
curiam).
       23   United States v. Pena-Gonzalez, 618 F. App’x 195, 201 (5th Cir. 2015) (per curiam).
                                                9
    Case: 16-40167        Document: 00514034138     Page: 10   Date Filed: 06/14/2017



                                     No. 16-40167
here, the defendant files and litigates a motion to suppress. This is because
Silva’s motion precluded the government and the sentencing court
from “allocat[ing] their resources efficiently,” a concern central to § 3E1.1. 24 In
his motion to suppress, Silva maintained that the wooden compartment in
which officers found the firearm, ammunition, and body armor was locked. He
specifically stated that the officers “gained access to the locked compartment
by prying open the hinges[.]” Silva argued that the “officers could not have
reasonable [sic] believed a person could be hiding or pose a threat in a locked
compartment.” At the hearing, both Tamez and the law enforcement officer
who took photos of the compartment testified that the compartment was not
locked. Silva presented no evidence to the contrary and did not aver at any
point during the hearing that the compartment was locked. As a result, the
district court properly concluded that the compartment was not locked.
         At Silva’s sentencing hearing, the government opposed his request for a
§ 3E1.1(b) reduction because, it contended, “the entire basis [of] and all the
allegations contained in the motion to suppress were falsified.” The
government noted that Silva’s attorney had even presented a photograph of a
compartment with a lock on it to support its motion. Silva’s attorney did not
contest that he had shown photographs indicating that the compartment at
issue was locked, but he stated only that “those photos were never
actually introduced into evidence” and that Silva’s family provided him with
those photos.
         Because Silva’s motion was based on the false claim that the
compartment was locked, the district court did not err in denying Silva’s




         24   U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(b) (U.S. SENTENCING COMM’N
2014).
                                          10
    Case: 16-40167       Document: 00514034138       Page: 11     Date Filed: 06/14/2017



                                      No. 16-40167
request for an additional reduction under § 3E1.1(b). 25 Silva’s motion “forced
the government and the district court to allocate resources they would not have
been required to allocate” if he had not falsely represented that the
compartment was locked, a consideration underlying § 3E1.1. 26
                                         III.
                                      CONCLUSION
      The denial of Silva’s motion to suppress and the sentence imposed
following his guilty plea are AFFIRMED.




      25 Cf. Castillo, 779 F.3d at 325 (holding that when “the defendant has a good faith
dispute as to the accuracy of the factual findings in the PSR, it is impermissible for the
government to refuse to move for a reduction under § 3E1.1(b) simply because the defendant
requests a hearing to litigate the dispute” (emphasis added)).
      26   See United States v. Membrides, 570 F. App’x 859, 860–61 (11th Cir. 2014) (per
curiam).
                                            11
