                                                                                     FILED
                                                                         United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                     TENTH CIRCUIT                               July 23, 2012

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
v.                                                            No. 11-6086
                                                       (D.C. 5:10-CR-00215-R-4 )
LUIS ENRIQUE RAMIREZ-FRAGOZO,                                ( W.D. Okla.)

             Defendant - Appellant.




                             ORDER AND JUDGMENT*


Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.


      Louis Enrique Ramirez-Fragozo appeals from his conviction and sentence for

 conspiracy to possess with the intent to distribute heroin in violation of 21 U.S.C.

 § 841(a)(1). He claims the trial court erred in failing to suppress evidence because, in

 his view, the warrantless entry into the house where he was staying was not justified by

 exigent circumstances created by the officers. Finally, he contends his sentence is



      *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
 procedurally unreasonable. We affirm.

                                     BACKGROUND

       In 2009, the DEA and the Oklahoma City Police Department began a joint

investigation into a heroin trafficking organization operating in Oklahoma City. On

June 10, 2010, the officers coordinated the simultaneous execution of ten search warrants

at locations identified during the course of the investigation. One search resulted in the

detention of Alfredo Contreras, the suspected leader of the organization. Contreras

agreed to an interview. He told investigators about yet another residence from which

several individuals were distributing heroin. He described the residence and told the

investigators about two vehicles and a fire extinguisher containing heroin, which could be

found there.


       With this information, nine or ten officers arrived at the residence still dressed in

T-shirts or raid vests imprinted with the word “Police.” Some were wearing raid helmets.

Two or three officers stood on the front porch while the others were arrayed to the right

and left of it. An officer knocked on the front door and announced, “Police

department . . . . Come to the front door.” (R. Vol. III, Part 4 at 16.) In response, officers

saw someone open the blinds, look out the window, and close the blinds. There was no

evidence as to what any of the occupants saw. The officer knocked again and said,

“Police department, come to the front door.” (Id. at 17.) This statement was met with the

sounds of activity inside the house, including running footsteps, cabinets or doors being

slammed, and an individual speaking loudly. Immediately thereafter, the officers heard



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what one officer described as “awkward quietness.” (Id.) Believing the occupants of the

residence were destroying evidence, an officer used a battering ram to enter into the

house.

         Once inside, officers discovered a man flushing drugs down the toilet. They also

saw the red fire extinguisher described earlier by Contreras. The officers detained the

individuals in the residence while they obtained a warrant to continue the search. In the

end, approximately one pound of heroin was found in the fire extinguisher.

         Ramirez-Fragozo was one of the individuals found in the residence. He was

arrested and charged as stated above. Before trial, his co-defendant, Alejandro Canas,

moved to suppress the evidence discovered during the search of the residence. He joined

the Canas motion. In denying the motion, the district court concluded exigent

circumstances justified the warrantless entry.

         Ramirez-Fragozo and Canas were tried together.1 Both were found guilty of the

charged conspiracy. Ramirez-Fragozo was sentenced to 139 months imprisonment;

Canas was sentenced to 120 months.2 (Appellant Br. at 3, 30.)




         1
         Two other defendants, Pedro Caras-Beltan and Renando Lopez-Payan, pled
guilty to the conspiracy offense.
         2
        Canas appealed, raising only whether the district court erred in denying his
motion to suppress. We affirmed his conviction and sentence in United States v. Canas,
462 F. App’x 836 (10th Cir. 2012) (unpublished).


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                                     DISCUSSION

A.     Motion to Suppress

       When reviewing the denial of a motion to suppress, we examine the evidence in

the light most favorable to the Government and accept the district court’s factual findings

unless they are clearly erroneous. United States v. Polly, 630 F.3d 991, 996 (10th Cir.

2011). The ultimate determination of whether a Fourth Amendment violation has

occurred, however, is reviewed de novo. Id.

       “[S]earches and seizures inside a home without a warrant are presumptively

unreasonable.” Kentucky v. King, 131 S.Ct. 1849, 1856 (2011). However, this

presumption can be overcome in certain circumstances, one being when there is probable

cause to believe a crime has been, or is being, committed and “‘the exigencies of the

situation’ make the needs of law enforcement so compelling that a warrantless search is

objectively reasonable under the Fourth Amendment.” Id. (quoting Mincey v. Arizona,

437 U.S. 385, 394 (1978)). Ramirez-Fragozo does not contest probable cause; instead he

argues: (1) there was no genuine exigency; and (2) any exigency came to be only

because the officers threatened to violate his Fourth Amendment rights, a circumstance

defeating the exigency exception.

       We rejected Ramirez-Fragozo’s first argument in Canas. There, we said:

       When determining whether exigent circumstances existed, this court
       “evaluate[s] the circumstances as they would have appeared to prudent,
       cautious, and trained officers.” United States v. Creighton, 639 F.3d 1281,
       1288 (10th Cir. 2011). Here, officers had information from their
       interrogation of Contreras that four individuals were using the residence to
       facilitate the distribution of illegal drugs. The officers knocked and
       announced their presence. Despite the fact that an individual inside the


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       residence opened the blinds and looked outside, no one opened the door or
       responded to the officers' knocking. Instead, officers heard running, loud
       talking, and the sounds of doors or cabinets slamming. This frenzied
       activity was followed by complete silence. We conclude these
       circumstances, considered as a whole, gave the officers an objectively
       reasonable basis to believe evidence of drug trafficking activity would be
       destroyed if they did not immediately enter the residence.

Canas, 462 F. App’x at 838-39. Ramirez-Fragozo presents the same arguments as those

presented in Canas; we affirm for the reasons announced by the Canas panel.

       Ramirez-Fragozo’s opening brief specifically argues the exigency exception is not

available to the Government because the actions of the officers amounted to a threat to

violate the Fourth Amendment. See King, 131 S.Ct. at 1858 & n.4 (“There is a strong

argument to be made that, at least in most circumstances, the exigent circumstances rule

should not apply where the police, without a warrant or any legally sound basis for a

warrantless entry, threaten that they will enter without permission unless admitted.”).

       We did not consider this issue in Canas because it had not properly been raised.

See Canas, 462 F. App’x at 839. However, in a concurring opinion, Judge Gorsuch

indicated he would resolve the issue as follows:

       Any exigency in this case arose not from the officers’ conduct at Mr.
       Canas’s house, but from facts they learned before arriving there.
       Immediately before heading to Mr. Canas’s house, officers had
       simultaneously executed search warrants at ten locations connected to the
       same drug trafficking conspiracy. During the raids, they learned for the
       first time about Mr. Canas’s house and were told that it, too, contained a
       significant amount of heroin connected with the conspiracy. Under these
       circumstances and this court’s precedents, it was objectively reasonable for
       officers to fear that news of their raids would spread quickly to the
       occupants of Mr. Canas’s house and cause them to dispose of any drugs
       before officers could obtain a warrant. See, e.g., United States v. Aquino,
       836 F.2d 1268, 1273 (10th Cir.1988) (exigent circumstances existed when
       police feared that other members of a drug transaction would learn of an

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        arrest and destroy the drugs before a warrant could be obtained). The
        officers also knew that members of the conspiracy usually sent drugs out
        from bases like Mr. Canas’s house for delivery to customers around 7:30
        a.m. each morning, yet they didn't learn about Mr. Canas’s house until
        slightly after 7:00 a.m. The officers were thus faced with the prospect that,
        unless they acted quickly, some drugs were likely to be removed from the
        house in about 30 minutes even if word of their raid didn't spread sooner.
        Combining all these facts together, it is clear enough that the officers didn't
        create exigent circumstances by their appearance and conduct outside Mr.
        Canas’s house; exigent circumstances existed before they got there and
        justified their appearance and behavior when they arrived.

   Id. at 4. We agree.

        We emphasize two fundamentals: First, the facts creating the exigency occurred

well prior to the officers’ arrival at the house, as discussed above. Second, the officers

made no overt threat to violate the occupant’s rights. After their arrival, the officers

knocked on the door several times; they twice announced their presence; they twice asked

the occupants to come to the door; and they twice waited for a response. This is not a

“demand that amounts to a threat to violate the Fourth Amendment.” King, 131 S. Ct. at

1863.

        Ramirez-Fragozo argues the “show of military force . . . clearly implied that if

there was no compliance with their demands the Fourth Amendment would be violated,”

(Appellant’s Br. at 27). However, there was no evidence that the occupants were aware

of the extent of the police presence or felt threatened. Mostly we have the suppositions

of counsel. We know only that someone spread a blind, peeked out of the window and

then drew the blind. We have no idea what the occupants saw or thought.

        But we know that after the peek there was a flurry of activity, reasonably

suggesting destruction of evidence. Before the officers arrived they were legitimately

                                             -6-
concerned that critical evidence would be lost if they did not act decisively. The events

at the door exacerbated those pre-existing concerns—destruction of evidence was not

merely likely, it was ongoing.

        Any exigency created after the officers arrived at the home came not from them,

but from Ramirez-Fragozo or his compatriots.          Occupants of a residence have no

obligation to respond to the knock on the door and, if they choose to do so, they need not

speak with the officers and they need not respond to their questions or allow them entry.

See id. at 1862. “Occupants who choose not to stand on their constitutional rights but

instead elect to attempt to destroy evidence have only themselves to blame for the

warrantless exigent-circumstances search that may ensue.” Id. at 1862.

     The district court did not err in denying Ramirez-Fragozo’s motion to suppress.

B.      Sentencing

        Ramirez-Fragozo also claims the district court imposed a procedurally

unreasonable sentence because its sentencing decision, allegedly under 18 U.S.C. §

3553(a), was a de facto application of an enhancement for obstruction of justice which

was made without an adequate factual explanation. The reasonableness of a sentence is

reviewed under a deferential abuse-of-discretion standard, considering both the

procedural and substantive components. United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1214 (10th Cir. 2008). In our procedural review, we look to the manner in which

the district court calculated and explained the sentence. Id.

        Ramirez-Fragozo did not object to the procedure employed. Therefore, we review

for plain error. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir. 2007).

                                            -7-
Ramirez-Fragozo must demonstrate error that was plain and affected his substantial

rights. Id. If he succeeds, he must also demonstrate that the error seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. See id. He does not

quarrel with the application of the plain error standard, yet he presents no argument as to

how he has met its stringent requirements. Therefore, we decline to consider this claim.

See United States v. Solomon, 399 F.3d 1231, 1238 (10th Cir. 2005) (concluding a

defendant waives a plain error argument when he or she fails to address the plain error

requirements).

       Affirmed.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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