                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                       OCTOBER 27, 2006
                                    No. 05-15156                       THOMAS K. KAHN
                              ________________________                     CLERK


                           D. C. Docket No. 04-00474-CR-6-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                           versus

SALVADOR VILLANUEVA-FABELA,
a.k.a. Chava,

                                                               Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                    (October 27, 2006)

Before BLACK and HULL, Circuit Judges, and RYSKAMP,* District Judge.



       *
         Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District
of Florida, sitting by designation.
PER CURIAM:

      Defendant Salvador Villanueva-Fabela (“Villanueva-Fabela”) appeals his

drug and firearms convictions and sentences. On appeal, Villanueva-Fabela argues

that the district court erred by (1) denying his motion to suppress evidence seized

from his trailer home; and (2) enhancing his sentence based on his role in the

offense. After oral argument and a thorough review of the record, we affirm.

                                I. BACKGROUND

      On August 8, 2003, Atlanta Police Department officers reported to a trailer

park located at 501 Connell Avenue and surrounded trailer E-1 after receiving

information that a suspect involved in a shooting was last seen entering that trailer.

Because the suspect, later identified as Gilibaldo Villanueva-Fabela (“Gilibaldo”),

had relatives who lived in trailer C-1, several officers also established a perimeter

around trailer C-1 in order to look for the suspect.

      While officers were standing outside of trailer E-1, Gilibaldo exited the

trailer and stood on the front porch. The officers instructed Gilibaldo to stop and

raise his hands. Gilibaldo started to raise his hands, but then lowered them and

attempted to reach for his pants pocket. As a result, the officers approached

Gilibaldo with their weapons drawn, demanding that he raise his hands. Gilibaldo

complied and was placed in handcuffs. After noticing a bulge in Gilibaldo’s pants



                                           2
pocket, officers patted him down and discovered a loaded revolver and some

ammunition.

      At that time, two other individuals, later identified as Pedro Villanueva-

Fabela (“Pedro”) and Alexandro Plancarte (“Plancarte”), exited trailer E-1 and

were searched. A pistol was recovered from Plancarte’s pocket. The officers then

conducted a security sweep inside trailer E-1 for their safety and observed in plain

view a block of marijuana, a large amount of suspected methamphetamine, a set of

scales, and several rifles. The officers secured the area while one of them left to

obtain a search warrant.

      Meanwhile, the officers stationed outside of trailer C-1 detected a strong

odor of raw or bulk marijuana coming from the trailer. Because of this odor, the

officers continued to investigate trailer C-1 even after Gilibaldo had been

apprehended at trailer E-1. At some point, the officers approached Defendant

Villanueva-Fabela, who was sitting on the front porch of trailer C-1, and placed

him in handcuffs. Villanueva-Fabela’s common-law wife, Norma Lopez, and their

children also were present at the scene. Because neither Villanueva-Fabela nor

Lopez understood English, Officer Medina, a Spanish speaking officer, was called

to the scene in order to translate, inquire about the ownership of trailer C-1, and try

to obtain consent to search the trailer. Officer Medina, who was wearing a full



                                           3
uniform and badge but did not have his gun drawn, explained to the couple that the

other officers wanted to look for drugs, weapons, and other contraband, and

requested their consent to search.

      Officer Medina also provided Defendant Villanueva-Fabela and Lopez with

a consent-to-search form in Spanish, which he also read to them. As Officer

Medina read the form, he asked Lopez and Defendant Villanueva-Fabela whether

they understood what he was saying, and neither one of them expressed any

misunderstanding or confusion. Officer Medina also explained that they had the

right to refuse consent. Officer Medina indicated, however, that if they refused to

give consent to search, the officers would obtain a search warrant for the premises.

During this encounter, Defendant Villanueva-Fabela was not very talkative, but he

did indicate that he understood the contents of the form by nodding and saying

“yes” in Spanish when asked if he consented. Lopez wrote her name and

Defendant Villanueva-Fabela’s name on the top of the form. Villanueva-Fabela

then signed the bottom of the consent form, but his signature was in the wrong

space on the form.

      Once the officers at trailer C-1 had obtained consent to search, they began to

search trailer C-1. During the search, Officer Medina remained with Lopez and

Defendant Villanueva-Fabela in case they decided to revoke their consent. With



                                          4
the help of a canine unit, the officers located and seized approximately one pound

of marijuana from underneath trailer C-1. The officers also found a sawed-off

shotgun in a bedroom, as well as a few other firearms inside trailer C-1. Defendant

Villanueva-Fabela was placed under arrest.

      Back at trailer E-1, the officers began to search the trailer after successfully

obtaining a search warrant. During the search of trailer E-1, the officers located

and seized (1) a large block of compressed marijuana weighing approximately ten

pounds; (2) 2,086 grams of methamphetamine; (3) a total of seventeen firearms,

including a Mac-11 machine pistol; and (4) approximately $20,000 in U.S.

currency. Gilibaldo, Pedro, and Plancarte were placed under arrest.

      About a month later, Defendant Villanueva-Fabela, who had been released

on bond following his August 8, 2003 arrest at trailer C-1, was placed under arrest

on September 11, 2003, for federal charges stemming from his possession of a

sawed-off shotgun. That same day, based on information received from

Villanueva-Fabela’s girlfriend, Ashley Ortiz, law enforcement officers conducted a

search of a hotel room in which Villanueva-Fabela and Ortiz had been staying.

During the search, the officers located and seized several items, including (1) 439.6

grams of methamphetamine; (2) approximately 50 tablets of

3,4 methylenedioxymethamphetamine (also known as “MDMA” or “ecstasy”);



                                           5
(3) a small amount of marijuana; and (4) approximately $20,000 in U.S. currency.

      In September 2004, a federal grand jury returned a multiple count indictment

against Defendant Villanueva-Fabela and various co-conspirators. The indictment

charged Defendant Villanueva-Fabela with (1) conspiracy to distribute and possess

with intent to distribute at least 500 grams of a mixture or substance containing a

detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(viii) (Count One); (2) conspiracy to possess firearms, including a

Mac-11 machine pistol and a Jennings chrome 9mm handgun, in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1) and 371 (Count

Two); (3) possession of a firearm, specifically the Mac-11 machine pistol

described in Count Two, in furtherance of a drug trafficking crime, in violation of

18 U.S.C. §§ 924(c)(1)(B)(ii) and 2 (Count Seven); (4) possession with intent to

distribute at least 500 grams of a mixture or substance containing a detectable

amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(viii) and 18 U.S.C. § 2 (Count Eight); (5) possession with intent to

distribute a detectable amount of marijuana, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C) and 18 U.S.C. § 2 (Count Nine); (6) possession of an unregistered

firearm, specifically a shotgun with a barrel less than 18 inches in length, in

violation of 26 U.S.C. §§ 5841, 5861(d), and 5871 (Count Twelve); (7) possession



                                           6
of a firearm by an illegal alien, specifically the shotgun described in Count Twelve,

in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2) (Count Thirteen);

(8) possession of a firearm, specifically the Jennings chrome 9mm handgun

described in Count Two, in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1) (Count Fourteen); (9) possession with intent to distribute at

least 50 grams of a mixture or substance containing a detectable amount of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii) and 18

U.S.C. § 2 (Count Fifteen); and (10) possession with intent to distribute MDMA, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count

Sixteen). Villanueva-Fabela pled not guilty to all charges.

      Before trial, Defendant Villanueva-Fabela filed a motion to suppress,

asserting that all evidence seized during the search of trailer C-1 should be

excluded. In particular, Villanueva-Fabela argued that any consent given to

conduct the search of trailer C-1 was invalid and only given after his allegedly

improper detention. After conducting a hearing, the magistrate judge found that

Villanueva-Fabela’s consent was voluntarily given and recommended that his

motion to suppress be denied. Over Villanueva-Fabela’s objection, the district

court adopted the magistrate judge’s recommendation and denied the motion to

suppress.



                                           7
      Immediately preceding his jury trial, Villanueva-Fabela entered an

unconditional, non-negotiated plea of guilty to Counts Twelve and Thirteen, which

counts were based on Villanueva-Fabela’s possession of the sawed-off shotgun

found in trailer C-1. The district court accepted Villanueva-Fabela’s guilty plea,

finding that it was made knowingly and voluntarily, and adjudged him guilty of the

firearm offenses charged in Counts Twelve and Thirteen. Villanueva-Fabela then

proceeded to trial on the remaining counts in the indictment.

      At trial, the government called several witnesses who testified about

purchasing drugs from Defendant Villanueva-Fabela or from one of his co-

conspirators. One witness, Jamie Brown, testified that he began purchasing

methamphetamine from Villanueva-Fabela in the summer of 2003. Brown first

met Villanueva-Fabela at trailer C-1 and, with the help of Villanueva-Fabela’s

brother to translate, purchased two ounces of methamphetamine from Villanueva-

Fabela. Thereafter, Brown began visiting the trailer park on a daily basis in order

to purchase approximately four to six ounces of methamphetamine from

Villanueva-Fabela per visit. Brown testified that these transactions had taken place

at both trailer C-1 and trailer E-1, but that trailer E-1 was the primary location for

these transactions after the first month. Several times Brown gave Villanueva-

Fabela firearms instead of cash in order to pay for the methamphetamine he was



                                           8
purchasing. On one occasion, Brown gave Villanueva-Fabela the Mac-11 machine

pistol that subsequently was found in trailer E-1 in exchange for some

methamphetamine.1

       Another witness, Laura Adams, testified that she purchased

methamphetamine from Brown during the summer of 2003. Adams accompanied

Brown on two occasions to a trailer park in which Brown met with Villanueva-

Fabela in order to purchase methamphetamine. Adams identified trailer E-1 as the

trailer in which these meetings occurred. At one of these meetings, Villanueva-

Fabela took Adams into a bedroom and showed her several firearms.

       The jury found Villanueva-Fabela guilty on all remaining counts in the

indictment except for Count Fourteen.2 Although the jury made several specific

findings with regard to the quantity of methamphetamine involved, there was no

specific finding as to the amount of marijuana that Villanueva-Fabela had

possessed.

       According to a presentence investigation report (“PSI”), Villanueva-Fabela’s

base offense level was 38, pursuant to U.S.S.G. § 2D1.1(c)(1), based on the jury’s

       1
        The Mac-11 machine pistol found in trailer E-1 was easily identified by Brown at trial as
the one he had given Defendant Villanueva-Fabela because of modifications made to the gun to
convert it into an automatic weapon.
       2
        Count Fourteen charged Defendant Villanueva-Fabela with possession of a Jennings
chrome 9mm handgun. Although multiple witnesses testified about the Jennings gun, the gun
apparently was not found during any of the searches conducted in this case.

                                                9
finding that Villanueva-Fabela conspired to possess with intent to distribute at least

15 kilograms of methamphetamine. Because this was the highest possible base

offense level under § 2D1.1, the PSI noted that Villanueva-Fabela’s possession of

marijuana and ecstacy had no bearing on the sentencing calculations. The PSI also

recommended a four-level enhancement, pursuant to U.S.S.G. § 3B1.1(a), based on

Villanueva-Fabela’s role as an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive. With a total offense

level of 42 and a criminal history category of I, the advisory Guidelines range was

360 months to life imprisonment.

      Villanueva-Fabela objected to the PSI, arguing, inter alia, that there was no

evidence to support the four-level role enhancement. Specifically, Villanueva-

Fabela argued that the other participants in the conspiracy were merely drug

buyers, and that a buyer-seller relationship was insufficient to warrant the

enhancement.

      At sentencing, the government conceded that the four-level enhancement

was not proper but argued that a two-level role enhancement, pursuant to U.S.S.G.

§ 3B1.1(c), applied. The government emphasized that Villanueva-Fabela exercised

control and authority over other individuals involved in this criminal activity,

namely Plancarte, Villanueva-Fabela’s two brothers, and at times, Ortiz. To



                                          10
demonstrate Villanueva-Fabela’s role, the government presented the testimony of

Brown and Adams.

      At sentencing, Brown testified that he purchased methamphetamine from

Villanueva-Fabela, but explained that Villanueva-Fabela was not always present at

the time of purchase. When this occurred, Brown would call Villanueva-Fabela on

his cell phone. Villanueva-Fabela would then talk with either Plancarte or

Villanueva-Fabela’s brother, whoever was present at the trailer, and one of these

individuals would retrieve the methamphetamine for Brown. In addition, Brown

sometimes would give Plancarte or Villanueva-Fabela’s brother money for drugs

that had been fronted to him when Villanueva-Fabela was not present.

      At sentencing, Adams testified that the two times she met with Villanueva-

Fabela at the trailer park there were always other people around who were

associated with Villanueva-Fabela. According to Adams, Villanueva-Fabela

would never leave the room, but instead would direct these other people to retrieve

whatever he needed, including bringing methamphetamine to sell to Brown or

Adams.

      The district court agreed that the four-level enhancement was not

appropriate, but found that the evidence was sufficient to support a two-level

enhancement for Villanueva-Fabela’s role in the offense. The court found that



                                         11
Villanueva-Fabela did direct the activities of Plancarte, and that Villanueva-

Fabela’s brothers also seemed to be under his control. The court also found that

Villanueva-Fabela had a high level of responsibility, relative to the other members

of the conspiracy, and that Villanueva-Fabela exercised management responsibility

over the property, the assets, and the activities of the organization. Accordingly,

the district court found that the two-level enhancement applied, resulting in an

offense level of 40 and an advisory Guidelines range of 292 to 365 months.

       The district court sentenced Villanueva-Fabela to terms of imprisonment of

292 months on Counts One, Eight, and Fifteen, 60 months on Count Two, 240

months on Counts Nine and Sixteen, and 120 months on Counts Twelve and

Thirteen, all to run concurrently. The district court also sentenced

Villanueva-Fabela to 60 months’ imprisonment on Count Seven, to run

consecutively, for a total sentence of 352 months’ imprisonment. This appeal

followed.

                                     II. DISCUSSION

A. Denial of Motion to Suppress

       On appeal, Villanueva-Fabela argues that the district court erred by denying

his motion to suppress evidence seized from trailer C-1.3 Specifically, Villanueva-


       3
       We review de novo the district court’s denial of a motion to suppress, viewing all
evidence in the light most favorable to the party that prevailed below. United States v.

                                               12
Fabela argues that his consent to search was not valid because (1) the consent form

was not signed in the proper space; (2) the environment was coercive; (3) he was

not given Miranda warnings; (4) the consent was merely an acquiescence to a

claim of lawful authority after the officers stated that they would get a warrant if

they were not given consent to search; and (5) the consent was tainted by his illegal

seizure.

       The question of whether a consent to search was voluntarily given is a

question of fact to be determined from the totality of the circumstances.

Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047-48 (1973).

“A district court’s determination that consent was voluntary is a finding of fact,

that will not be disturbed on appeal absent clear error.” United States v. Purcell,

236 F.3d 1274, 1281 (11th Cir. 2001). After review and oral argument, we

conclude that the district court did not clearly err in determining that Villanueva-

Fabela’s consent was voluntarily given and did not err in denying Villanueva-

Fabela’s motion to suppress.

       First, viewing the evidence in the light most favorable to the government,

Villanueva-Fabela consented to the search, both verbally and in writing. As

Officer Medina was reading the consent form to Villanueva-Fabela and Lopez,



Yuknavich, 419 F.3d 1302, 1308 (11th Cir. 2005).

                                             13
Villanueva-Fabela indicated that he understood, and he said “yes” in Spanish when

asked if he consented. Moreover, although in the wrong space, Villanueva-Fabela

nonetheless signed his name at the bottom of the consent form, further indicating

that he consented to the search.4

       Second, the environment in which Villanueva-Fabela gave his consent was

not coercive. Although the officers were in full uniforms, there is no evidence that

any of the officers at trailer C-1 had drawn their weapons or threatened Villanueva-

Fabela in any way. Moreover, although Villanueva-Fabela was placed in

handcuffs, this factor alone does not make the consent involuntary. See United

States v. Garcia, 890 F.2d 355, 362 (11th Cir. 1989) (finding consent voluntarily

given even though fourteen law enforcement agents were present when the

defendant was arrested and the defendant was handcuffed at the time he gave

consent). In fact, we have found a defendant’s consent to be voluntary in

situations far more intimidating than the circumstances of this case. See, e.g.,

United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993) (concluding consent

voluntarily given even though the defendant had been “arrested by SWAT team

members who broke into his home in the early morning, woke him, and forced him


       4
        The district court also found that Lopez, the common-law wife of Villanueva-Fabela,
independently consented to the search of trailer C-1. The government argues that even if there is
some issue about Villanueva-Fabela’s consent, the consent of Lopez supports the search.
Because we conclude that Villanueva-Fabela’s consent was valid, we need not reach this issue.

                                               14
to the ground at gunpoint”); United States v. Espinosa-Orlando, 704 F.2d 507, 510,

513 (11th Cir. 1983) (concluding consent voluntarily given after four officers had

drawn their weapons, asked the defendant to step away from his car, told him to lie

on the grass, and asked for consent while he was on the ground and one officer still

had his weapon drawn). Accordingly, we agree with the district court that there

was nothing particularly coercive about the circumstances surrounding Villanueva-

Fabela’s consent.

      Third, the fact that Villanueva-Fabela may not have been given Miranda

warnings prior to giving his consent does not invalidate the consent. This Court

previously explained that a consent to search is not a self-incriminating statement,

and therefore, that a defendant’s consent can be valid even if it was obtained after

he had been given Miranda warnings and had invoked his right to remain silent.

Hidalgo, 7 F.3d at 1568. Based on this reasoning, we must reject Villanueva-

Fabela’s argument that his consent was invalid based on the alleged failure to give

Miranda warnings.

      Fourth, Villanueva-Fabela’s consent was not merely an acquiescence to a

claim of lawful authority based on Officer Medina’s comment that the police

would obtain a warrant if he did not consent. Villanueva-Fabela relies on Bumper

v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788 (1968) to support his position. In



                                          15
Bumper, the Supreme Court concluded that a consent to search was invalid if given

“only after the official conducting the search has asserted that he possesses a

warrant.” Id. at 548-50, 88 S. Ct. 1791-92. Here, Officer Medina never asserted

that the police already possessed a warrant; he stated only that if Villanueva-Fabela

refused to consent to the search the police would obtain a warrant. Accordingly,

Bumper does not control the outcome in this case. Rather, this case is more closely

akin to Garcia, in which the officers attempting to elicit a consent stated that if the

defendant refused to consent, they would have to secure the house and attempt to

obtain a search warrant. 890 F.2d at 358. In Garcia, this Court concluded that the

defendant’s consent was not merely acquiescence to a claim of lawful authority,

noting that “[t]he agents never represented to Garcia that they were in possession

of a search warrant, or that they could lawfully search his premises without his

consent.” Id. at 361. The key distinction between Bumper and Garcia is whether

the officers ever represented that they could lawfully conduct the search regardless

of whether consent was given. In this case, like in Garcia, the officers never

represented to Villanueva-Fabela that they possessed a search warrant or otherwise

had the authority to search the trailer. Accordingly, we conclude that Villanueva-

Fabela’s consent was not merely the result of acquiescence to a claim of lawful

authority.



                                           16
      Fifth, we reject Villanueva-Fabela’s argument that his consent was tainted

by an illegal seizure. When the officers approached trailer C-1, they smelled a

strong odor of marijuana coming from the trailer. This, coupled with the fact that

the police were called to the scene to look for a shooting suspect, gave the officers

reasonable suspicion to detain Villanueva-Fabela for their own safety, pursuant to

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). Moreover, the fact that

Villanueva-Fabela was handcuffed does not necessarily transform the detention

into an arrest. See United States v. Acosta, 363 F.3d 1141, 1147 (11th Cir. 2004).

Finally, the scope of the detention was carefully tailored to its underlying

justification and lasted no longer than was necessary to effectuate the purpose of

the stop. See Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325 (1983).

Accordingly, based on the totality of the circumstances, we conclude that

Villanueva-Fabela was properly detained prior to giving consent, and therefore,

that his consent was not tainted by an illegal seizure.

      Finally, even if we assume arguendo that Villanueva-Fabela’s consent was

invalid and the search of trailer C-1 was unconstitutional, any error in denying

Villanueva-Fabela’s motion to suppress was harmless beyond a reasonable doubt.

See Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827 (1967) (concluding

that some constitutional errors are “so unimportant and insignificant” that they may



                                           17
be deemed harmless). The overwhelming evidence of Villanueva-Fabela’s guilt at

trial was based on the evidence seized from trailer E-1 and the hotel room, not

from trailer C-1, and thus, Villanueva-Fabela cannot show that he was prejudiced

by the introduction of the evidence seized from trailer C-1.

       Based on the foregoing, we conclude that the district court did not err in

denying Villanueva-Fabela’s motion to suppress, and we affirm Villanueva-

Fabela’s convictions.

B. Enhancement for Villanueva-Fabela’s Role in the Offense

       Villanueva-Fabela argues that the district court erred by applying a two-level

enhancement to his offense level based on his leadership role in the offense,

pursuant to U.S.S.G. § 3B1.1(c).5 Section 3B1.1(c) provides for a two-level

enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor

in any criminal activity other than” one that involved five or more participants or

was otherwise extensive. U.S.S.G. § 3B1.1(c). “Section 3B1.1 requires the

exercise of some authority in the organization, the exertion of some degree of

control, influence, or leadership.” United States v. Yates, 990 F.2d 1179, 1182

(11th Cir. 1993) (quotation omitted). However, “the assertion of control or

influence over only one individual is enough to support a § 3B1.1(c)


       5
        We review the district court’s determination of a defendant’s role in the offense for clear
error. See United States v. Gordon, 231 F.3d 750, 754 (11th Cir. 2000).

                                                18
enhancement.” United States v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000).

      We conclude that the district court did not clearly err in determining that

Villanueva-Fabela exercised a leadership or management role in the offense. The

evidence in this case indicated that Villanueva-Fabela exercised some control over

other participants, including Plancarte, Villanueva-Fabela’s brothers, and Ortiz,

and that Villanueva-Fabela occupied a leadership role in the conspiracy. Given

this evidence, we cannot say that the district court clearly erred when it determined

that Villanueva-Fabela had occupied a leadership role in the offense. Accordingly,

we affirm his sentences.

                                III. CONCLUSION

      Based on the foregoing reasons, we affirm Villanueva-Fabela’s convictions

and sentences.

      AFFIRMED.




                                          19
