                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 28 2010

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30286

           Plaintiff - Appellee,                 D.C. No. CR-08-05603-TSZ

  v.
                                                 MEMORANDUM *
JESUS VALENCIA-REUVELTA

           Defendant - Appellant,



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Thomas S. Zilly, District Judge, Presiding

                         Argued and Submitted May 7, 2010
                                Seattle, Washington




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WARDLAW and GOULD, Circuit Judges, and WARE **, District Judge.

      Jesus Valencia-Reuvelta appeals his February 12, 2009 conviction by jury

verdict of possession of marijuana with intent to distribute, 21 U.S.C. §§ 841(a)(1),

841(b)(1)(D), and 18 U.S.C. § 2, and possession of a firearm by an illegal alien, 18

U.S.C. §§ 922(g)(5), 924(a)(2). On appeal, Valencia contends (1) that he did not

voluntarily give consent to four law enforcement officers to search a residence at

23917 Northwest Maplecrest Road (“the Maplecrest Residence”), and that even if

he had voluntarily given consent, the officers’ search exceeded the reasonable

scope of that consent; (2) that the district court erred when it declined to clarify,

upon the jury’s request, the meaning of the word “intention” in the district court’s

instruction on possession; and (3) that the district court committed procedural error

when it enhanced Valencia’s Guidelines offense level by two levels since the jury’s

verdict only addressed one of four firearms found in the Maplecrest Residence.

      We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 18 U.S.C. § 3742.

We affirm the conviction, vacate the sentence, and remand to the district court to

recalculate the sentence without the enhancement for possession of multiple

firearms.



       **
            The Honorable James Ware, United States District Judge for the
Northern District of California, sitting by designation.

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         A.    Voluntary Consent to Search of the Residence

         We review the district court’s denial of a motion to suppress de novo, United

States v. McWeeney, 454 F.3d 1030, 1033 (9th Cir. 2006), and the district court’s

underlying factual finding that a person voluntarily consented to search for clear

error, United States v. Patayan Soriano, 361 F.3d 494, 501 (9th Cir. 2004).

Although a warrantless search conducted pursuant to valid consent is

constitutionally permissible, the government bears the burden of proving that such

consent was given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S.

218, 222 (1973). We apply a multi-factor fact-intensive test to determine whether

a person has given free and voluntary consent to conduct a search and do not place

dispositive weight on any single criterion. United States v. Perez-Lopez, 348 F.3d

839, 846 (9th Cir. 2003); United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir.

2000).

         Here, the district court credited the testimony of two agents that Valencia

responded affirmatively when asked in his native language whether he consented

to a search of the Maplecrest Residence. The district court also relied on evidence

that the agents had not used other coercive tactics, such as drawing their guns or

threatening to obtain a search warrant. Further evidence demonstrated that, after

receiving Miranda warnings in his native language, Valencia verbally consented to


                                            3
continue the search after guns and marijuana were found, although he declined to

sign a written consent form. Because there was persuasive evidence supporting a

finding of voluntary consent, we affirm the district court’s denial of the motion to

suppress evidence gleaned from the search of the Maplecrest Residence.1

      B.     Failure to Give Clarifying Jury Instruction

      We review a district court’s response to a jury question for abuse of

discretion. Arizona v. Johnson, 351 F.3d 988, 993 (9th Cir. 2003). We have held

that “when a jury makes explicit its difficulties by, for example, asking a question,

the trial court should clear the jury’s difficulties away with concrete accuracy.” Id.

at 994. However, “the precise manner by which the court fulfills this obligation is

a matter committed to its discretion.” Id. A district court does not abuse its

discretion simply because it refers the jury back to the instructions they had already

been given. Id. at 995.




      1
          Valencia contends that the search exceeded the scope of any consent he
may have given. However, Valencia did not challenge the scope of the search at
trial, except in a passing reference contained in a listing of the elements of a valid
consensual search. We have held on multiple occasions that “just as failure to file
a timely motion to suppress evidence constitutes a waiver, so too does a failure to
raise a particular ground in support of a motion to suppress.” E.g., United States v.
Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). Thus, we conclude that Valencia
has waived any challenge to the validity of the scope of the search.

                                           4
      Here, the jury’s request for clarification of the word “intention” in the

court’s instruction on possession did not indicate any actual misunderstanding of

the elements necessary to convict Valencia. Because the word intention was meant

to carry its ordinary meaning, any danger that the jury would fail to correctly

interpret the term was negligible. For that reason, Valencia’s proposal to provide

the jury with a definition of intent taken from Washington Criminal Instruction

10.01 would not have clarified the original instruction but rather would have added

new and incorrect elements to the possession charge, further confusing the jury.

      Thus, we conclude that the district court did not abuse its discretion when it

declined to further clarify the meaning of the word intention in response to the

jury’s request.

      C.     Sentence Enhancement for Multiple Firearms

      We review “the district court’s interpretation of the Sentencing Guidelines

de novo, the district court’s application of the Sentencing Guidelines to the facts of

this case for abuse of discretion, and the district court’s factual findings for clear

error.” United States v. Stoterau, 524 F.3d 988, 997 (9th Cir. 2008). “The

government bears the burden of proving, by a preponderance of the evidence, the

facts necessary to enhance a defendant’s offense level under the Guidelines.”

United States v. Guzman-Mata, 579 F.3d 1065, 1072 (9th Cir. 2009).


                                            5
       The Guidelines provide that if an offense involved between three and seven

firearms, a two-level increase in the offense level is appropriate. U.S.S.G. §

2K2.1(b)(1)(A). The Application Note to Section 2K2.1(b)(1) states: “For

purposes of calculating the number of firearms under subsection (b)(1), count only

those firearms that were unlawfully sought to be obtained, unlawfully possessed, or

unlawfully distributed . . . .”

       Here, the jury based its verdict on Valencia’s possession of only one firearm,

a .380 semi-automatic handgun. Evidence at trial showed that three additional

firearms were found in the search of the Maplecrest Residence: a .9mm handgun

and a 12-gauge shotgun in the converted attic bedroom, and a .22 caliber rifle in

the garage. However, the evidence strongly indicated that several other individuals

were living in the same residence. In fact, the passport, social security card, and

temporary driver’s license of a person named Jairo Arevalos Silva were found in a

black duffel bag in the converted attic bedroom close to the .9mm handgun. The

agents also discovered that Mr. Silva was the owner of the red pickup truck found

in the garage near the .22 caliber rifle.

       We hold that Valencia’s mere proximity to the additional firearms and his

presence on the property where they were found is insufficient to establish

constructive possession. See United States v. Carrasco, 257 F.3d 1045, 1049 (9th


                                            6
Cir. 2001). Valencia’s claim of an ownership interest in the red pickup truck,

which could conceivably connect him to the .22 caliber rifle found in the garage,

can only support a finding of possession of one additional firearm, which falls

short of the three firearms needed to add the two-level increase under the

Sentencing Guidelines.

      In light of the paucity of the evidence, we conclude that the district court

clearly erred by finding that Valencia exercised dominion or control over the three

additional firearms and thus abused its discretion by adding a sentence

enhancement under Section 2K2.1(b)(1)(A). Accordingly, we vacate Valencia’s

sentence and remand to the district court to recalculate the sentence without the

two-level increase.

      CONVICTION AFFIRMED. SENTENCE VACATED. REMANDED

FOR RESENTENCING.




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