                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      August 12, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 07-2284
                                                            (D. N.M.)
 JOE BARROS,                                    (D.Ct. No. 1:05-cr-02048-MCA-1)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and O’BRIEN, Circuit Judges.


      Following the armed robbery of a pizza store, Joe Barros was convicted by

a jury of: 1) obstructing, delaying and affecting interstate commerce in violation

of 18 U.S.C. § 1951; 2) brandishing a firearm during and in relation to a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and 3) being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). Barros complains about: the denial of his motion to suppress



      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation --
(unpublished). 10th Cir. R. 32.1(A).
evidence and what he believes were procedural errors at sentencing. He also

contends there was insufficient evidence to support his conviction. We affirm.

                               I. BACKGROUND

       On April 10, 2005, a man wearing a black leather jacket, hat and

sunglasses entered a pizza store in Rio Rancho, New Mexico and pointed a silver

pistol at Adriana Santora, the employee who greeted him. He declared, “[t]his is

a robbery.” (R. Vol. 3 at 14; Appellant’s Brief, Ex. B). Jarrod Mora and Daniel

Timmons, two other employees of the store, also saw the man, took notice of his

gun and heard his demands for money. In response to the robber’s demands,

Timmons unlocked the register and gave him approximately eighty dollars. The

robber then demanded money from a second register. Timmons responded there

was no secondary register, only the safe which operated on a time-delay lock and

would take fifteen minutes to open. The robber then left the store.

      Santora ran to the back of the store and informed Thomas Cardenas, the

store manager, of the robbery. Cardenas, Santora, and Mora ran to the front door

and observed a vehicle leaving the parking lot. They described this vehicle as

“gold-tannish,” “light gold,” “yellowish gold,” or “goldish” in color.

(Appellant’s Brief, Ex. B, D; R. Vol. 3 at 71; 17.) Mora and Cardenas believed

the car was a Chevrolet Monte Carlo with a New Mexico license plate number

FKP999. During this time, Timmons reported the robbery to 911 dispatch and

provided the vehicle description and license plate number as relayed to him by

                                        -2-
Mora and Cardenas.

        Police officers arrived shortly thereafter and took witness statements from

the employees. Santora, Timmons, and Mora stated the robber was wearing a

black leather jacket and sunglasses and agreed the gun was a silver or chrome

handgun. Santora and Mora estimated the robber was between 5 feet, 6 inches

and 5 feet, 8 inches tall. Timmons and Santora described his complexion as

“dark.”

        The license plate reported by the employees was registered to a light gold

1985 Buick Coupe owned by Joe Barros and registered to an address of 1821

Peach Road in Rio Rancho (the same address was listed as his residence on his

driver’s license). This address was approximately a seven minute drive from the

pizza store. The police checked Barros’ criminal background and discovered he

was on probation for second-degree murder and was affiliated with known gang

members. The police notified his probation officer of a possible violation of the

terms of Barros’ release. The probation officer obtained a warrant for Barros’

arrest. 1

        1
         As a condition of his parole, Barros’ was required to wear an electronic
monitoring device on his ankle and carry a hand-held global positioning satellite (GPS)
transmitter which tracked his movements via a GPS satellite. The transmitter was able to
detect the location of the ankle bracelet from approximately 30 feet. It indicated Barros
had been outside of the transmitter’s range on the day of the robbery for approximately
six hours, including the time of the robbery. Testimony at trial revealed there were
reported problems with transmitters like the one he was required to wear, but Barros had
reported no malfunctions of his unit within the eight months before the robbery.


                                           -3-
       Based upon the identification of the license plate registered to Barros’

vehicle, a general match to his physical appearance, and his criminal history, the

police requested a warrant to search Barros’ address and vehicle. The warrant

application was prepared by Officer Brian Thacker. This was his first application

in his eighteen months as a police officer and he used a previously prepared

warrant application as a “template.” (R. Vol. 3 at 123.) In relevant part, the

narrative to support the application stated:

       Prior to affiant’s arrival, the suspect fled the area in a gold in color
       Chevrolet Monte Carlo, bearing NM FKP-699. 2 The license plate
       returned to a Joe Barros located at 182 Peach Rd in Rio Rancho . . . .
       Santora stated that the defendant walked through the front door. She
       asked him if he was here to pick up an order. The defendant then
       pulled out a solid silver handgun, pointed it at Ms. Santora and
       stated, “Give me all the money.” . . . Timmons opened the register
       and handed all the money to defendant. He then asked for the bottom
       register. Mr. Timmons told the defendant that everything was on a
       ten-minute time delay. The defendant then told Mr. Timmons and
       Ms. Santora to back away; he then walked out the door. The
       employees described the subject to be a dark complected male in his
       40’s. He was approximately 5’5”, 130 pounds and was last seen
       wearing a black leather jacket and sunglasses . . . . Officers we[re]
       able to identify the defendant as a gang member . . . He is currently
       on probation/parole for murder . . . A warrant has since been issued
       on the defendant for a probation/parole violation.

(R. Vol. 1 at 41-42 (emphasis added).) A New Mexico district court judge

reviewed and granted the warrant application.

       2
        Thacker testified this was a “clerical error on [his] part” and should have read
FKP-999. (R. Vol. 3 at 238.) Although Mora and Cardenas stated the robber drove a
Chevrolet Monte Carlo, the license plate they provided matched Barros’ Buick Coupe
which matched the vehicle color they described. Viewed from the rear, both a Monte
Carlo and Buick Coupe from the late 1980’s have a similar trunk compartment.

                                            -4-
      Multiple police units arrived at Barros’ residence to execute the search

warrant. Approximately every fifteen seconds, Officer Peter Camacho used a

public address system to announce the officers’ presence. Almost an hour after

the police arrived, Barros surrendered. He was wearing a black leather jacket.

He was advised of his rights under the Miranda decision 3 and acknowledged he

understood them. Camacho asked where the gun was located. After initially

denying he knew anything about a gun, Barros told Camacho “[t]he gun is under

my bed in the garage.” (R. Vol. 3 at 264.) The officers found a silver handgun

under the mattress in the garage. Two pairs of sunglasses were also seized.

During later interrogation, Barros stated he was the only person with access to his

vehicle on the day of the robbery but maintained he was not near the pizza store.

Further investigation indicated Barros was experiencing financial distress around

the time of the robbery. Less than three works before the robbery, he pawned a

watch at a store located next to the pizza store. On the day of the robbery, he

borrowed ten dollars from his daughter. At the time of his arrest, Barros had

forty-eight dollars in cash but was unable to explain how he obtained the money.

      Barros filed a motion to suppress the evidence obtained as a result of the

search warrant. He argued Officer Thacker’s use of the word “defendant”

throughout the warrant application misled the issuing judge. He further asserted

the employees’ physical descriptions of the robber did not match Barros’ physical

      3
          See Miranda v. Arizona, 384 U.S. 436 (1966).

                                           -5-
characteristics. 4 Following a hearing, the district court rejected these arguments

and denied Barros’ motion.

                                   II. DISCUSSION

       Barros appeals from the district court’s decision and also argues that even

if the evidence obtained as a result of the search warrant is not suppressed, there

is insufficient evidence to support his conviction. 5

A. Denial of the Motion to Suppress Evidence

       “When reviewing the denial of a motion to suppress, we view the evidence

in the light most favorable to the government, accept the district court’s findings

of fact unless clearly erroneous, and review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” United States v. Gambino-Zavala,


       4
        In particular, Barros stated he is 5 feet, 3 inches tall while the employees
described a robber between 5 feet, 6 inches and 5 feet, 8 inches. Similarly, the employees
described the robber’s complexion as “dark” but none of them described him as Hispanic.
(Appellant’s Brief, Ex. B, C.)
       5
          Barros also appeals from the district court’s application of the sentencing
guidelines. However, any possible effect on his mandatory sentence (Barros was
sentenced as a career criminal according to USSG §4B1.1) depends wholly on future state
court rulings regarding previous felony convictions. Barros recognizes he may, or may
not, accomplish anything in the state habeas proceedings and concedes this issue is likely
not ripe for review as a result. He is correct. We are without jurisdiction to consider the
hypothetical outcomes of his habeas petitions. See Preiser v. Newkirk, 422 U.S. 395, 401
(1975) (judgments of federal courts only resolve real and substantial controversies and do
not proffer advice on hypothetical facts). Barros explains the challenge is meant to
preserve his objection to the procedural sentencing errors and his ability to challenge the
procedural reasonableness of his sentence if his state court convictions are overturned and
the career criminal provision no longer applies. His preservation of the objection is
noted.

                                            -6-
539 F.3d 1221, 1225 (10th Cir. 2008) (quotations omitted).

      1. Franks Violation

      Barros maintains Officer Thacker misled the judge who issued the warrant

so egregiously that the evidence must be suppressed. Specifically, he argues

Thacker’s use of the word “defendant” synonymously with “suspect” in the

warrant application improperly suggested Barros was the robber. The district

court held a hearing, as prescribed by Franks v. Delaware, 438 U.S. 154 (1978),

to determine if “a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit, and if

the allegedly false statement is necessary to the finding of probable cause.” Id. at

155-56. The district court concluded the use of the word “defendant” was not

used to mislead the issuing judge and there was no knowingly or intentionally

false information in the warrant application. We review for clear error.

Gambino-Zavala, 539 F.3d at 1225.

      Barros has failed to make the showing required by Franks. 438 U.S. at

155-56. At best, he has shown the police officer who drafted the warrant was

sloppy and mistakenly used the word “defendant” in place of “suspect” or

“robber.” The misuse of language came from Thacker’s inexperience, not malice

or unbridled zeal. “[A] misstatement in an affidavit that is merely the result of

simple negligence or inadvertence, as opposed to reckless disregard for the truth,

does not invalidate a warrant.” United States v. Colonna, 360 F.3d 1169, 1174

                                          -7-
(10th Cir. 2004). The application succinctly sets forth the recollections of the

eyewitnesses and the facts supporting the warrant request. The experienced

issuing judge was unlikely to be misled by such technicalities. There was no

reason to invalidate the warrant on Franks grounds.

      2. Probable Cause to Issue Warrant

      Barros also claims the warrant lacked probable cause. A judge’s role in

considering an affidavit in support of a warrant requires “a practical, common-

sense decision whether, given all the circumstances set forth in the affidavit

before him, including the ‘veracity’ and ‘basis of knowledge’ of persons

supplying hearsay information, there is a fair probability that contraband or

evidence of some crime will be found in a particular place.” Illinois v. Gates, 462

U.S. 213, 238 (1983). We are quite deferential to a judge’s decision to issue a

warrant and “need only ask whether, under the totality of the circumstances

presented in the affidavit, the [issuing] judge had a ‘substantial basis’ for

determining that probable cause existed.” United States v. Artez, 389 F.3d 1106,

1111 (10th Cir. 2004) (quoting Gates, 462 U.S. at 238-39). Probable cause to

search a location does not depend on direct evidence or personal knowledge that

evidence or contraband is there. See United States v. Hargus, 128 F.3d 1358,

1362 (10th Cir. 1997). Rather, an affidavit supporting a warrant application need

only establish a “nexus between the objects to be seized and the place to be

searched for them [which] . . . would warrant a person of reasonable caution to

                                          -8-
believe that the articles sought would be found at the place to be searched.” Id.

       Barros claims inconsistencies between the eyewitness’ accounts were not

fully disclosed in the warrant application. The eyewitness’ reports contained

minor discrepancies, 6 but they provided the police with sufficient information to

begin a search for the robber’s identity. The license plate number identified a car

similar in style and color to the witness’ descriptions. That the witnesses did not

identify the correct make and model of the car is of no consequence; their

descriptions identified a gold or tan colored car consistent with the vehicle

registered to the reported license plate. The registered owner of the vehicle –

Barros – also matched the witnesses’ descriptions of the robber. The minor

discrepancies concerning the suspect’s height and complexion did not

substantially conflict so as to create substantial doubt regarding the robber’s

physical appearance. See Beard v. City of Northglenn, 24 F.3d 110, 116 (10th

Cir. 1994) (omission must show recklessness which calls the truth of the

allegations into question); DeLoach v. Bevers, 922 F.2d 618, 622 (10th Cir. 1990)

(omitted information must be “clearly critical” to the finding of probable cause in

a warrant to require reversal).

       The warrant clearly noted a robbery took place and a suspect matching

       6
         The witnesses’ statements regarding the suspect’s height varied by two inches;
they agreed he was of dark complexion (Timmons described the suspect as “black” when
calling 911 to report the robbery, only the suspect’s complexion – not his ethnicity or race
– was mentioned in the witness statements and Thacker was unaware of the substance of
the 911 call). One report estimated the robber’s age to be in the 45-55 year range.

                                            -9-
Barros’ description fled the scene in a car similar in color to Barros’ vehicle and

bearing license plates registered to Barros. These statements established

connections between Barros and the robbery and provided probable cause to

believe evidence of the robbery might be found in Barros’ car and residence. See

Artez, 389 F.3d at 1111. The judge’s approval of the warrant application was

supported by information sufficient to lead even the most cautious jurist to

recognize the existence of probable cause. 7

B. Insufficiency of the Evidence to Support Conviction

       Barros contends that absent the evidence found during the execution of the

search warrant, there was insufficient evidence to support his conviction.

However, he candidly acknowledges that if evidence is not suppressed it is

“almost certainly” sufficient to sustain his conviction. (Appellant’s Reply Brief

at 4.) He is almost correct. The evidence presented to the jury is certainly

sufficient to sustain his conviction.

       We review the record for sufficiency of the evidence de novo. United

States v. Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004). “Evidence is sufficient to

support a conviction if a reasonable jury could find the defendant guilty beyond a

reasonable doubt, given the direct and circumstantial evidence, along with

reasonable inferences therefrom, taken in a light most favorable to the


       7
        Barros further quarrels with the district court’s alternative holding denying
suppression — inevitable discovery. It is unnecessary for us to reach that issue.

                                            -10-
government.” Id. “We will not weigh conflicting evidence or second-guess the

fact-finding decisions of the jury.” United States v. Summers, 414 F.3d 1287,

1293 (10th Cir. 2005). “Rather than examining the evidence in ‘bits and pieces,’

we evaluate the sufficiency of the evidence by ‘considering the collective

inferences to be drawn from the evidence as a whole.’” Nelson, 383 F.3d at 1229

(quoting Wilson, 107 F.3d at 778). “While the evidence supporting the conviction

must be substantial and do more than raise a mere suspicion of guilt, it need not

conclusively exclude every other reasonable hypothesis and it need not negate all

possibilities except guilt.” United States v. Burkley, 513 F.3d 1183, 1188 (10th

Cir.) (brackets and internal quotation omitted), cert. denied, 128 S. Ct. 2979

(2008).

       Barros was charged with violating 18 U.S.C. §§ 1951 and 924(c)(1)(A)(ii). 8

The evidence discussed in detail above was more than sufficient to support

Barros’ conviction. As to his being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) there can be no


       8
        18 U.S.C. § 1951 states:
       Whoever in any way or degree obstructs, delays, or affects commerce
       or the movement of any article or commodity in commerce, by robbery
       or extortion or . . . commits or threatens physical violence to any person
       or property in furtherance of a plan or purpose to do anything in
       violation of this section shall be fined . . . imprisoned . . . or both.
       18 U.S.C. § 924(c)(1)(A)(ii) is violated when a defendant uses, carries,
       or brandishes a firearm “during and in relation to any crime of
violence”.


                                            -11-
doubt. The parties stipulated to Barros’ prior felony conviction (R. Vol. 3 at 270)

and he directed the officers to a loaded firearm beneath the mattress in his room.

      AFFIRMED.


                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                        -12-
