                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 29 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.     17-10374

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-00001-RCJ-VPC-1
 v.

ALBERTO JULIO GUILLEN,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Nevada
                   Robert Clive Jones, District Judge, Presiding

                     Argued and Submitted September 7, 2018
                            San Francisco, California

Before: BERZON and FRIEDLAND, Circuit Judges, and CARDONE, ** District
Judge.

      Alberto Guillen challenges the district court’s denial of his motion to

suppress and his sentence following a conditional guilty plea for unlawful

possession of a firearm. Finding no error, we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
      The government charged Guillen with unlawful possession of a firearm

under 18 U.S.C. §§ 922(g)(1), 924(a)(2) after law enforcement found a sawed-off

shotgun and rifle in his house while responding to an emergency call about a man

yelling death threats at 3:40 in the morning. Guillen filed a motion to suppress,

arguing that officers had unlawfully entered his home without a warrant or consent,

and requested an evidentiary hearing. The district court granted the motion in part

and denied in part without an evidentiary hearing or a hearing under Franks v.

Delaware, 438 U.S. 154 (1978). Guillen then pleaded guilty under a conditional

plea agreement that permitted him to appeal the denial of his motion to suppress.

The plea agreement also allowed the parties to advocate for or against an offense-

level enhancement for possession of a firearm in connection with another felony

offense and for any sentence within the Guidelines range. After hearing argument

at sentencing, the district court imposed a within-Guidelines sentence of seventy

months in custody and three years of supervised release. Guillen appealed.

      1. Guillen first argues that the district court erred in denying his motion to

suppress evidence of the guns inside his home. We review the denial of a motion

to suppress de novo. United States v. Cook, 808 F.3d 1195, 1199 (9th Cir. 2015).

      The district court denied the motion after concluding the emergency aid

exception to the warrant requirement applied. Under that exception, “law

enforcement officers ‘may enter a home without a warrant to render emergency
assistance to an injured occupant or to protect an occupant from imminent injury.’”

Mahrt v. Beard, 849 F.3d 1164, 1172 (9th Cir. 2017) (quoting Michigan v. Fisher,

558 U.S. 45, 47 (2009)). To determine whether the exception applies, we apply a

two-part test that asks whether: “(1) considering the totality of the circumstances,

law enforcement had an objectively reasonable basis for concluding that there was

an immediate need to protect others or themselves from serious harm; and (2) the

search’s scope and manner were reasonable to meet the need.” United States v.

Snipe, 515 F.3d 947, 952 (9th Cir. 2008).

      The facts of this case satisfy both parts of the emergency aid exception. The

officers responded to a 911-caller’s report of a man yelling and screaming “at the

top of his lungs” and “threatening somebody” at 3:40 a.m. Dispatch informed the

officers that the suspect was “threatening someone’s life.” Law enforcement first

encountered Guillen on his front porch and spoke with him to determine what had

happened. During their conversation, Guillen corroborated the 911 report through

his statements and demeanor. He appeared upset and told the officers he had been

“blowing off steam” because he was dealing with a lot of issues. When he refused

to say what those issues were, the officers asked whether anybody was inside the

house. Guillen responded affirmatively, saying his roommate was inside. Given

the substance of the 911 call, the nature of the encounter with Guillen outside of

the house, and its corroboration of the 911 call, the officers had an objectively
reasonable basis to conclude somebody inside required their immediate assistance

or protection from serious harm. And because the officers first conferred with

Guillen before entering the house and confined themselves “to the areas of the

house likely to include individuals in harm’s way[,]” their entry was “reasonable to

meet the need.” See id. at 952, 954. The district court therefore correctly

determined that the emergency aid exception applied.

      Moreover, because the emergency aid exception is sufficient to justify the

warrantless entry, see id. at 954, the district court did not err by denying Guillen’s

motion without an evidentiary hearing to determine whether he had consented to

the entry, see Cook, 808 F.3d at 1201 (concluding that the district court did not

abuse its discretion by declining to hold an evidentiary hearing in the absence of “a

material factual dispute”).1

      2. Guillen next contends that the district court wrongly denied a hearing

under Franks to decide the veracity of the officers’ search warrant application. See



      1
         Guillen also argues against the search warrant’s validity, maintaining that
the warrantless entry “tainted” every fact in the officers’ warrant application. This
argument is without merit because the emergency aid exception justified the entry.
Guillen further contends that evidence of a marijuana pipe and large plastic stick
should have been excised from the warrant application because the officers only
noticed those items by impermissibly looking into his bedroom. Yet even
assuming, without deciding, that this evidence was discovered unlawfully, the
warrant application included sufficient evidence from the valid entry, such as the
roommate’s statements and injury, to establish probable cause. See United States
v. Job, 871 F.3d 852, 865 (9th Cir. 2017).
438 U.S. 154. In making this argument, Guillen relies upon one acknowledged

misstatement in the application, about where his roommate was when law

enforcement arrived, and one alleged omission, that the officers’ initial entry into

the house was unlawful. Because the emergency aid exception allowed the

warrantless entry, however, Guillen’s argument that officers concealed that entry

to obtain the search warrant necessarily fails. So we need only consider whether

the misstatement about the roommate’s location entitled Guillen to a Franks

hearing.

      A Franks hearing is appropriate only if the moving party can make a

“substantial preliminary showing that [1] a false statement was deliberately or

recklessly included in or omitted from a warrant affidavit, and [2] that the false

statements or omissions were material to the finding of probable cause.” United

States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004) (citing United States v. Fisher,

137 F.3d 1158, 1164 (9th Cir. 1998)). A false statement is “material” if “necessary

to finding probable cause.” United States v. Perkins, 850 F.3d 1109, 1116 (9th Cir.

2017) (citation omitted).

      Guillen has not demonstrated the materiality of the misstatement that law

enforcement arrived finding the roommate “out in the front yard.” This

misstatement is immaterial because it was not “necessary to finding probable

cause.” See id. Instead, probable cause was established by the 911 call, Guillen’s
corroboration of the substance of that call, the roommate’s statements about his

altercation with Guillen, including that Guillen had displayed a sawed-off shotgun

and hit him with a large plastic stick, as well as the roommate’s resulting visible

injury. See United States v. Job, 871 F.3d 852, 865 (9th Cir. 2017). Accordingly,

the district court did not err by denying Guillen’s Franks request.

      3. Guillen next argues that the government breached the plea agreement at

sentencing. We generally review a claim for breach of plea agreement de novo.

United States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). However, when

defense counsel fails to object to the prosecutor’s statements at sentencing, as in

this case, we are limited to plain error review. United States v. Whitney, 673 F.3d

965, 970 (9th Cir. 2012). “Relief for plain error is available if there has been

(1) error; (2) that was plain; (3) that affected substantial rights; and (4) that

seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.” Id.

      Here, there was no plain error because the government did not breach the

plea agreement. Guillen argues the government breached the agreement during his

sentencing hearing by informing the district court that it was not bound to consider

only the facts in the plea agreement, reading the offense facts included in the

presentence investigation report, and “implicitly arguing” for a sentence above the

Guidelines range by detailing Guillen’s criminal history. We disagree. The
government’s arguments and statements at sentencing fully comported with the

plea agreement, which explicitly allowed either party to “provide additional

information” to the district court “regarding the nature, scope, and extent of the

defendant’s criminal conduct and any aggravating or mitigating facts or

circumstances.”

      AFFIRMED.
                                                                        FILED
United States v. Guillen, No. 17-10374                                  NOV 29 2018
                                                                    MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, concurring in part and dissenting in part:     U.S. COURT OF APPEALS


      I concur in the majority’s determination that the government did not breach

the plea agreement. I respectfully dissent, however, with regard to the motion to

suppress. In my view, the emergency aid exception to the warrant requirement

does not apply on the facts of this case. The evidence discovered after the police

entered Alberto Guillen’s apartment should have been suppressed.

      1. When the officers entered Guillen’s house, it was not objectively

reasonable to believe that the officers needed to “enter [Guillen’s] home without a

warrant to render emergency assistance to an injured occupant or to protect an

occupant from imminent injury.” Bonivert v. City of Clarkston, 883 F.3d 865, 876

(9th Cir. 2018) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). The

officers certainly did not need to enter the home to protect Guillen’s roommate

from imminent harm by Guillen. When the officers entered the home, Guillen was

outside the house, next to two officers. See id. at 877. There is no evidence he

was at this point armed, hostile, or otherwise presented a risk of imminent harm.

      Nor was there an objectively reasonable basis to believe that the officers

needed to “render emergency assistance to an injured occupant” inside the house.

Id. The officers arrived at Guillen’s home after dispatch reported that a man who

was screaming had threatened somebody’s life. But there was no report that
anyone had been physically attacked, much less injured. And when the officers

arrived, there were no signs that indicated that somebody in or near Guillen’s

house had been recently injured. See Bonivert, 883 F.3d at 877 (noting that the

house was silent while the officers were outside); cf. Michigan v. Fisher, 558 U.S.

45, 48 (2009) (“Just as in Brigham City, when [the police] arrived on the scene

they encountered a tumultuous situation in the house—and here they also found

signs of a recent injury, perhaps from a car accident, outside.”); United States v.

Martinez, 406 F.3d 1160, 1165 (9th Cir. 2005).

      The need to enter a house to provide emergency aid must be viewed under

the totality of the circumstances. See Bonivert, 883 F.3d at 877 (requiring “an

objectively reasonable basis for believing that an actual or imminent injury was

unfolding in the place to be entered”). Here, taking into account the totality of the

circumstances, the officers had no basis to reasonably believe that Guillen’s

roommate was in need of immediate assistance.

      2. Even if the officers had some basis for concern about Guillen’s roommate,

they took no steps to ascertain whether the roommate needed emergency assistance

before going into Guillen’s house. “[I]f police officers otherwise lack reasonable

grounds to believe there is an emergency, they must take additional steps to

determine whether there is an emergency that justifies entry in the first place.”

Hopkins v. Bonvicino, 573 F.3d 752, 765 (9th Cir. 2009) (internal quotation marks
and alterations omitted). On the limited record available, it appears that the

officers simply demanded that Guillen let them into the house, making no effort to

contact the roommate before doing so.1

      The government suggests that if the officers had not entered the house as

they did, their only option would have been to walk away. But the officers did not

have such a limited option. They could have knocked on the front door, rang the

doorbell, attempted to contact Guillen’s roommate through a window, or, perhaps,

called Guillen’s roommate on his cellphone. Cf. Michigan v. Fisher, 558 U.S. 45,

46 (2009) (noting that the officers first knocked before entering the suspect’s

home); Brigham City, 547 U.S. at 406 (noting that the officers “opened screen door

and ‘yelled in police’” before entering the home); Bonivert, 883 F.3d at 877

(noting that the officers “peered into different windows” before entering the

suspect’s home); United States v. Snipe, 515 F.3d 947, 954 (9th Cir. 2008) (“Much

like the officers in Brigham City, Massey and Rodriguez knocked and announced

their presence before entering the residence.”); Martin v. City of Oceanside, 360

F.3d 1078, 1080 (9th Cir. 2004) (noting that the officers called the occupant’s

phone and repeatedly knocked on the front door before entering the home); United

States v. Dugger, 603 F.2d 97, 98 (9th Cir. 1979) (noting that after the officers


      1
        The limited record here is the government’s own doing. In the district
court proceedings, the government opposed the defendant’s request for an
evidentiary hearing on the motion to suppress.
opened the door to apartment and called out to occupant, the occupant told the

officers that “he was putting on his shoes and would be right out”).

      Thus, even accepting that there was some basis for fearing aid needed to be

administered, the government has not met its burden of showing that the entry into

Guillen’s house was reasonable under the emergency aid exception.

      Because the government has not shown that an exception to the warrant

requirement applies, and the fruits of the unlawful search should be suppressed, I

respectfully dissent.
