Court Rejects Several Arguments Regarding Conviction and Sentence for Felon-In-Possession

United States v. Cordero, No. 04-51314 (5th Cir. Sept. 25, 2006) (Jolly, Prado, Owen)

I realize the header isn't all that descriptive, but I failed in my attempt to fit all of the issues decided here into a sufficiently short headline. So here's what happened in Cordero:

Cordero was convicted, at a bench trial, of being a felon in possession of a firearm. The gun was found by state law enforcement officers when they executed a state search warrant for cocaine at Cordero's home. On appeal Cordero argued that 1) the gun should have been suppressed because the warrant was not supported by probable cause, 2) the district court erred in denying him an adjustment for acceptance of responsibility, and 3) "the district court violated United States v. Booker by enhancing his sentence based on a judicial determination that he commited the instant offense while on probation." The court rejected all three arguments, but vacated the sentence because Cordero was sentenced under a then-mandatory (post-Blakely, pre-Booker) sentencing scheme.

The Warrant: The issue here was whether the good-faith exception to the exclusionary rule applied, and more specifically whether the affidavit used to obtain the warrant was "'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Slip op. at 5 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). The court

conclude[d] that the affidavit is not so “bare bones” that the good-faith exception is inapplicable. The deputy’s affidavit alleges recent, personal observation of cocaine in Cordero’s residence by an informant who “ha[d] demonstrated his/her ability to identify Cocaine” and related paraphernalia. The informant also identified the residence, car, and “outer premises,” and this information was confirmed by the deputy. Thus, according to the affidavit, the deputy tested the informant’s reliability both as to his or her ability to identify cocaine and as to the details of the location where the cocaine was reportedly observed. Given the informant’s report of recent, personal observation of cocaine, the informant’s demonstrated ability to identify cocaine, the premises details conveyed to the deputy, and the deputy’s successful efforts at corroboration, we conclude that the good-faith exception to the exclusionary rule applies.

Slip op. at 5-6 (citations omitted). Color me unpersuaded. The informant may have been able to reliably identify cocaine, but there's no mention here as to whether the informant had provided reliable information about the location of cocaine in the past. And the deputy's attempt at corroboration didn't actually test the reliability of the informant's claim. Anyone could have accurately described the exterior of the house and the car; those details don't suggest any reliable knowledge of what was going on inside the house. In the end, there's really nothing more than a CI who said, "There's cocaine in that house." "You mean that house?" "Yeah."

Denial of Acceptance: The court affirmed the denial of acceptance, distinguishing United States v. Washington, 340 F.3d 222 (5th Cir. 2003), a case holding that a defendant may still be eligible for acceptance even if he has a bench trial for the purpose of preserving a challenge to a denial of a suppression motion.

In this case, unlike in Washington, Cordero did not stipulate “to all the evidence necessary for the conviction prior to the bench trial.” Instead, he “put[] the government to its burden of proof.” Cordero refused to stipulate to the third element–that he knowingly possessed the firearm–ostensibly to avoid waiving the suppression issue. In addition, Cordero did not stipulate to the interstate-commerce element until the government called its witness at trial and the court asked whether the element was in dispute. Finally, Cordero moved for a judgment of acquittal at the end of the trial “on the grounds that the Government . . . failed to prove its case beyond a reasonable doubt.”

In addition, unlike the defendant in Washington, Cordero could have received the acceptance-of-responsibility reduction without waiving appeal of the suppression issue. Cordero was offered a conditional plea agreement, under which he could have received an acceptance-of-responsibility reduction while preserving appeal of the suppression issue. Cordero rejected the plea agreement because it also waived appeal of any sentencing error, which Cordero argued was unacceptable. But even if Cordero found the plea agreement unacceptable, no evidence suggests Cordero had to accept the agreement the prosecution offered to preserve appeal of the suppression issue. Cordero presents no evidence that he could not enter a conditional plea under Federal Rule of Criminal Procedure 11(a)(2), which allows a defendant to plead guilty while preserving the right to appeal issues raised in pretrial
motions.

Slip op. at 9-10 (citations omitted). That last part is odd, given the fact that the Government must consent to the entry of a conditional plea. Presumably the Government refused to give that consent unless Cordero waived appeal of his sentence.

Booker: Cordero argued that it violated Booker for the district court to increase his criminal history based on that court's finding that he committed the instant offense while on probation. The court disagreed, citing decisions from several other circuits for the proposition that facts related to the fact of prior conviction, "such as the timing of the conviction and the type and length of sentence imposed, may be judicially found at sentencing." Slip op. at 11. There's no detailed discussion of this issue, probably because the court vacates the sentence due to the district court's error in imposing a sentence under the mandatory post-Blakely/pre-Booker regime.