                   UNITED STATES COURT OF APPEALS                      FILED
                           FOR THE NINTH CIRCUIT                        JUN 30 2020
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                     No.   17-50269

               Plaintiff-Appellant,           D.C. No. 5:16-cr-00146-R-1
                                              Central District of California,
 v.                                           Riverside

MARCOS ALEJANDRO GONZALEZ                     ORDER
FLORES,

               Defendant-Appellee.


UNITED STATES OF AMERICA,                     No.   17-50270

               Plaintiff-Appellee,            D.C. No. 5:16-cr-00146-R-1

 v.

MARCOS ALEJANDRO GONZALEZ
FLORES,

               Defendant-Appellant.

Before: O'SCANNLAIN, PAEZ, and OWENS, Circuit Judges.

      The memorandum disposition filed on January 9, 2020 is amended as

follows:

      On page 4, delete:

            Accordingly, we affirm the denial of the motion to suppress.

      On page 4, add:
            4. We reject Gonzalez’s argument that the district court abused its

            discretion by ruling on Gonzalez’s motion to suppress without holding

            an evidentiary hearing. “An evidentiary hearing on a motion to

            suppress need be held only when the moving papers allege facts with

            sufficient definiteness, clarity, and specificity to enable the trial court

            to conclude that contested issues of fact exist.” United States v.

            Howell, 231 F.3d 615, 620 (9th Cir. 2000). Gonzalez’s motion did

            not meet that standard.

      The amended memorandum is filed concurrently with this order.

      The petition for rehearing (Dkt. 72) is denied. No further petitions for

rehearing may be filed.




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                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 30 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50269

                Plaintiff-Appellant,            D.C. No. 5:16-cr-00146-R-1

 v.                                             AMENDED
                                                MEMORANDUM*
MARCOS ALEJANDRO GONZALEZ
FLORES,

                Defendant-Appellee.


UNITED STATES OF AMERICA,                       No.    17-50270

                Plaintiff-Appellee,             D.C. No. 5:16-cr-00146-R-1

 v.

MARCOS ALEJANDRO GONZALEZ
FLORES,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                    Argued and Submitted December 10, 2019
                             Pasadena, California


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: O’SCANNLAIN, PAEZ, and OWENS, Circuit Judges.

      The government appeals the district court’s imposition of a sentence below

the mandatory minimum. Marcos Alejandro Gonzalez Flores (“Gonzalez”) cross-

appeals the district court’s denial of his suppression motion. We have jurisdiction

under 28 U.S.C. § 1291. “We review de novo the legality of a criminal

sentence . . . .” United States v. Moreno-Hernandez, 48 F.3d 1112, 1114 (9th Cir.

1995). We also review de novo the denial of a suppression motion and review for

clear error the factual findings underlying such a denial. United States v. Brobst,

558 F.3d 982, 991 (9th Cir. 2009). We vacate the sentence, affirm the denial of the

motion to suppress, and remand to the district court for resentencing.

      1. As an initial matter, we reject Gonzalez’s challenge to the propriety of

the government’s appeal. First, the appellate waiver provision in the parties’ plea

agreement does not bar the appeal of an unlawful sentence. United States v.

Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (“An appeal waiver will not apply if . . .

the sentence violates the law.”). Second, we are satisfied the appeal was properly

authorized under 18 U.S.C. § 3742(b) by the Acting Solicitor General Jeffrey Wall.

See 5 U.S.C. §§ 3345(a)(1), 3346(a)(1); 28 C.F.R. § 0.137(b). Finally, the

government timely filed its notice of appeal on July 26, 2017; the government’s

filing of a second, identical notice of appeal on August 1, 2017, after the district

court’s clerk’s office requested the first notice be refiled under the correct “event”


                                           2
code, does not render the appeal untimely. Cf. United States v. Arevalo, 408 F.3d

1233, 1237−39 (9th Cir. 2005) (concluding an appeal was untimely where seven

months had elapsed between appellant’s voluntary dismissal of the appeal and his

attempt to reinstate it); Williams v. United States, 553 F.2d 420, 422 (5th Cir.

1977) (where ten months elapsed between the same).

      2. As to the merits of the government’s appeal, the district court erred in

imposing a sentence that disregarded the mandatory consecutive penalty.

Gonzalez pleaded guilty to offenses that carry mandatory minimum sentences of

five years each, which must run consecutively. See 21 U.S.C. § 841(b)(1)(B)(vii);

18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D)(ii). The district court sentenced Gonzalez to

72- and 60-month terms to run concurrently. That was error. See United States v.

Sykes, 658 F.3d 1140, 1146 (9th Cir. 2011) (“It is axiomatic that a statutory

minimum sentence is mandatory.”). We vacate the unlawful sentence and remand

to the district court for resentencing.

      3. Finally, we determine that the district court did not err in denying

Gonzalez’s motion to suppress evidence obtained during the search of his business.

Police obtained a warrant to search “Suite 114” of a multi-unit commercial

complex. While executing the warrant, they discovered a hidden three-by-three-

foot hole leading from Suite 114 into a second unit (not within the scope of the

warrant), which they erroneously believed was part of Suite 114. We conclude


                                          3
that, under the circumstances, it was “objectively understandable and reasonable”

for the officers to believe this second space was part of Suite 114 and thus to

search it. Maryland v. Garrison, 480 U.S. 79, 88 (1987).

      4. We reject Gonzalez’s argument that the district court abused its discretion

by ruling on Gonzalez’s motion to suppress without holding an evidentiary

hearing. “An evidentiary hearing on a motion to suppress need be held only when

the moving papers allege facts with sufficient definiteness, clarity, and specificity

to enable the trial court to conclude that contested issues of fact exist.” United

States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000). Gonzalez’s motion did not

meet that standard.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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