                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                      No. 12-2011
                                      __________

                           UNITED STATES OF AMERICA

                                           v.

                             SAMUEL VALLES, a/k/a TS

                                    Samuel Valles,
                                            Appellant

                                      __________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                       (D.C. Criminal No. 5-10-cr-000367-003)
                     District Judge: Honorable Legrome D. Davis
                                      __________

                      Submitted under Third Circuit LAR 34.1(a)
                                   April 22, 2013

            Before: JORDAN, ALDISERT and NYGAARD, Circuit Judges.

                                 (Filed: April 23, 2013)

                                      __________

                              OPINION OF THE COURT
                                    __________
ALDISERT, Circuit Judge.

      Samuel Valles appeals a judgment of the United States District Court for the

Eastern District of Pennsylvania, in which the Court sentenced Valles to 46 months‟
imprisonment after a jury convicted him of two counts of distribution of heroin and three

counts of possession with intent to distribute a controlled substance. Valles contends that

the District Court erred by (1) denying his request for an acceptance of responsibility

reduction under the Sentencing Guidelines, (2) denying his motion to suppress evidence

gathered from his residence pursuant to a search warrant, and (3) denying his motion to

dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C. § 3161. We

disagree, and will affirm the judgment of the District Court.

                                             I.

       Because we write primarily for the parties, who are familiar with the facts and

proceedings in the District Court, we will revisit them only briefly.

       In early 2009, the FBI and the Reading, Pennsylvania Police Department began

investigating a drug trafficking operation headed by Steven Santana. Valles, Santana‟s

uncle, made multiple heroin sales to an undercover officer in late 2009. Law enforcement

officers, pursuant to a court-authorized wiretap, intercepted phone conversations between

Valles and Santana regarding delivery and collection of drugs and money. Surveillance

conducted during the investigation revealed that Valles met with Santana and other

suspected drug traffickers and purchasers, in public, on multiple occasions. A grand jury
indicted Valles, Santana, and other individuals involved in the drug trafficking operation,

and a magistrate judge issued a search warrant for numerous locations, including Valles‟s

residence. During the search of Valles‟s residence, law enforcement officers found
heroin, cocaine, and crack cocaine, along with a loaded pistol and $8,440 in cash. They

subsequently arrested Valles.

       The District Court denied Valles‟s motion to suppress the evidence found at his

residence, as well as his motion to dismiss the indictment for violation of the Speedy

                                             2
Trial Act, 18 U.S.C. § 3161. At trial, a jury convicted Valles of two counts of distribution

of heroin, and three counts of possession with intent to distribute controlled substances.1

At sentencing, the District Court denied Valles‟s request for a two-level reduction for

acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, sentenced him to 46 months‟

imprisonment, and imposed fines and a special assessment totaling $3,000. Valles timely

appealed.2

                                             II.

       The District Court did not err in denying Valles‟s motion to suppress physical

evidence obtained during the search of his residence. In our review of the District Court‟s

denial of a suppression motion, “we review its factual findings for clear error and

exercise plenary review over its legal determinations.” United States v. Shields, 458 F.3d

269, 275-276 (3d Cir. 2006) (citation omitted).

       Valles contends that the warrant authorizing a search of his residence was not

supported by probable cause. He contends that the underlying affidavit contained

unsupported opinions and conclusions that constituted false or reckless statements,

without which there would not have been probable cause for the search. We disagree. As

a reviewing court, we are required only to “ensure that the magistrate had a substantial
basis for concluding that probable cause existed.” Illinois v. Gates, 462 U.S. 213, 238-

239 (1983) (internal quotation marks, citation and alterations omitted). The magistrate

judge‟s role is clear: he or she “is simply to make a practical, common-sense decision

1
  The jury also found Valles guilty of possession of a firearm in furtherance of a drug
trafficking conspiracy, but because the Court had previously granted Valles‟s motion for
judgment of acquittal of the predicate conspiracy offense, the District Court granted
Valles‟s motion for judgment of acquittal of the firearm offense.
2
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                             3
whether, given all the circumstances set forth in the affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found in a particular place.” Id.

at 238 (emphasis added). Here, based on the totality of the circumstances, this fair

probability clearly existed, given Valles‟s observed drug dealing activities and actual

sales of drugs to an undercover officer.

       Notwithstanding Valles‟s protestations that the affidavit contained no indication

that he engaged in any illegal activity at his residence, probable cause may be inferred

from “the type of crime, the nature of the items sought, the suspect‟s opportunity for

concealment and normal inferences about where a criminal might hide [evidence].”

United States v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010) (alteration in original) (quoting

United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993)). A magistrate judge is

permitted to draw the “reasonable inference . . . that drug dealers often store evidence of

drug crimes in their residences . . . [and] application of this inference is based on

evidence supporting three preliminary premises: (1) that the person suspected of drug

dealing is actually a drug dealer; (2) that the place to be searched is possessed by, or the

domicile of, the dealer; and (3) that the home contains contraband linking it to the

dealer‟s activities.” Id. at 559 (internal quotation marks and citation omitted). The
evidence clearly supported the first two premises. As to the third premise, that there was

a nexus between Valles‟s activities and the residence, the affidavit stated that Valles

made regular phone calls to Santana from a land line phone at the residence and that
investigators observed Valles leaving his residence to meet with Luis Berrios, who was

also named in the indictment. In addition, investigators observed Valles leaving the

residence to meet with an individual known to purchase drugs from Santana‟s associates.

In short, there was ample evidence before the Magistrate Judge from which he could

                                                4
permissibly infer that probable cause existed to search Valles‟s residence, and we reject

Valles‟s contentions to the contrary.

       We reject also Valles‟s related challenge to the statements in the underlying

affidavit. Valles correctly notes that a district court is permitted to look behind a warrant

to the statements made in the underlying affidavit, and is authorized to conduct a hearing

if a defendant “makes a substantial preliminary showing” that the affidavit includes false

statements that were made either “knowingly and intentionally, or with reckless disregard

for the truth.” Franks v. Delaware, 438 U.S. 154, 155-156 (1978). If, however, after

setting aside the allegedly false statements, “there remains sufficient content in the

warrant affidavit to support a finding of probable cause, no hearing is required.” Id. at

172-173. Simply put, the District Court in this case correctly determined that Valles

failed to make a substantial preliminary showing that the affidavit contained false

statements, but rather offered a different interpretation of the conversations and events

documented in the affidavit. Accordingly, we reject completely Valles‟s challenge to the

District Court‟s denial of his motion to suppress.

                                             III.

       The District Court did not err when it denied Valles‟s motion to dismiss his
indictment for violation of the Speedy Trial Act, 18 U.S.C. § 3161. We review de novo

the District Court‟s interpretation of the Speedy Trial Act, and review its factual

conclusions for clear error. United States v. Rivera Constr. Co., 863 F.2d 293, 295 n.3
(3d Cir. 1988). Under the Speedy Trial Act, a defendant must be brought to trial “within

seventy days from the filing date (and making public) of the information or indictment, or

from the date the defendant has appeared before a judicial officer of the court in which

such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). Numerous

                                              5
types of delays are excludable from computation of the seventy-day period, including

delays resulting from pretrial motions and continuances. See 18 U.S.C. § 3161(h). On

appeal, Valles focuses on the time period between June 4, 2011 and November 10, 2011,

contending that this period of time is not excludable from the seventy-day requirement,

and that the indictment therefore should have been dismissed.

       We find no merit in Valles‟s contentions regarding the Speedy Trial Act. On April

28, 2011, the District Court granted Valles‟s co-defendant Cori DeVault‟s motion for a

continuance. The District Court granted the motion, stating specifically that “[i]n

accordance with 18 U.S.C. § 3161(h)(7)(A), the Court finds that the ends of justice

served by granting this continuance outweigh the best interests of the public and the

defendant in a speedy trial . . . .” Supp. App. 68. Under 18 U.S.C. § 3161(h)(7), “after

defendants are joined for trial, an exclusion applicable to one defendant applies to all

codefendants.” United States v. Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993) (internal

quotation marks and citation omitted). Any delay between April 28, 2011 and the trial

date of November 28, 2011 was therefore excludable from the seventy-day requirement.

See United States v. Lattany, 982 F.2d 866, 868 (3d Cir. 1992) (“open-ended

continuances to serve the ends of justice are not prohibited if they are reasonable in
length.”). Accordingly, we need not address Valles‟s contention that the District Court‟s

delay in considering his motion to suppress violated the Speedy Trial Act.

                                            IV.
       Finally, we conclude that the District Court did not commit clear error when it

denied Valles‟s request to reduce his sentence for acceptance of responsibility. Although

we review de novo a district court‟s interpretation of the Sentencing Guidelines,

including U.S.S.G. § 3E1.1, we review for clear error a district court‟s factual

                                              6
determination regarding a criminal defendant‟s entitlement to a sentence reduction for

acceptance of responsibility. United States v. Ceccarini, 98 F.3d 126, 129 (3d Cir. 1996).

“Because the sentencing judge „is in a unique position to evaluate a defendant‟s

acceptance of responsibility,‟ we give great deference on review to a sentencing judge‟s

decision not to apply the two-level reduction for acceptance of responsibility to a

particular defendant.” United States v. Barr, 963 F.2d 641, 657 (3d Cir. 1992) (quoting

U.S.S.G. § 3E1.1 cmt. n.5).

       Section 3E1.1(a) of the Sentencing Guidelines states: “If the defendant clearly

demonstrates acceptance of responsibility for his offense, decrease the offense level by

two levels.” Valles contends that he should have received the reduction because he

informed the Government prior to trial that he was willing to plead guilty to some of the

counts against him, because he stipulated to the weight and content of the drugs

recovered from his sales to the undercover officer and from the search of his residence,

and because Valles‟s attorney‟s opening statement admitted that Valles sold heroin to an

undercover officer. Valles argues that, by virtue of these acts, he “truthfully admitt[ed]

the conduct comprising the offense(s) of conviction,” U.S.S.G. § 3E1.1 cmt. n.1(A), a

critical factor in the acceptance of responsibility analysis. The Government contends that
because Valles ultimately decided not to plead guilty to any of the charges against him,

notwithstanding strategic stipulations and statements by his attorney, he “put[] the

government to its burden of proof at trial,” id. at cmt. n.2, and that this is not one of the
“rare situations” where a defendant who exercises his right to trial may nevertheless be

eligible for the acceptance of responsibility reduction, see id. The District Court

considered these competing contentions during the sentencing hearing and determined

that Valles was not eligible for the reduction. Ultimately, we are not “left with a definite

                                               7
and firm conviction that a mistake has been committed,” United States v. Lessner, 498

F.3d 185, 199 (3d Cir. 2007), and we conclude that the District Court did not clearly err

in its determination.

                                         *****

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. The judgment of the District Court will be

AFFIRMED.




                                             8
