United States v. Magallon
United States v. Magallon
Opinion of the Court
MEMORANDUM
Federico Villanueva Magallon appeals his conviction and sentence for various drug offenses involving the importation and distribution of marijuana. See 21 U.S.C. §§ 841(a)(1), 846, 952, 960, 963. We affirm in part, vacate in part, dismiss in part, and remand.
(1) Villanueva first attacks the failure of the district court to suppress marijuana which was seized upon service of a search warrant. The government had a warrant to search the premises at 792 Ada Street, Chula Vista, California (hereafter 792). Another garage and house were on the same property — 784 Ada Street, Chula Vista, California (hereafter 784). Both 792 and 784 were entered, and drugs were discovered in the latter.
Villanueva possessed and controlled both 792 and 784 and, in fact, 784 was not being used as a separate residence by some
(2) Villanueva next asserts that even if the warrant was valid, the agents did not knock and announce before they entered 784. This boots him nothing. It is undisputed that the agents did knock and announce at 792, and they are not required to do so at each additional point of entry into structures within the curtilage. See United States v. Crawford, 657 F.2d 1041, 1044 (9th Cir. 1981); United States v. Bustamante-Gamez, 488 F.2d 4, 10 (9th Cir. 1973). At any rate, nobody was in the house at 784, so Villanueva cannot show any detriment from that failure.
(3) Villanueva then complains that the district court erred because it did not make an individualized determination regarding the amount of drugs for which he was responsible, but simply held him responsible for all of the drugs included in the whole conspiracy. We agree with him. An individualized determination is required. See USSG § lB1.3(a)(l)(B);
(4) The district court did not err when it enhanced Villanueva’s offense score by two levels for possession of firearms during the offenses in question. See USSG § 2D1.1(b)(l); United States v. Kyllo, 37 F.3d 526, 531 (9th Cir. 1994); United States v. Pitts, 6 F.3d 1366, 1368, 1372-73 (9th Cir. 1993). Certainly, it was not improbable that the guns were possessed in connection with his large-scale drug activities at the premises.
(5) The district court did not clearly err when it determined that Villanueva supervised five people and, therefore, awarded him a three point upward adjustment while denying a two point downward adjustment for his claimed minor role. See USSG §§ 3B1.1, 3B1.2; United States v. Asagba, 77 F.3d 324, 325 (9th Cir. 1996). At any rate, he did not actually have to supervise five people as long as five were involved and he supervised some of them. See United States v. Munoz, 233 F.3d 1117, 1136-37 (9th Cir. 2000). Far more than five were involved here.
(6) Next, Villanueva asks us to reverse the district court’s refusal to depart downward on the basis of claimed sentence entrapment. But nothing in the district court’s decision indicates that it was un
(7) In a last gasp, Villanueva asserts that 21 U.S.C. § 841(b) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He is wrong. See United States v. Buckland, 289 F.3d 558, 562 (9th Cir.) (en banc), cert. denied, — U.S. -, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002).
Conviction AFFIRMED; sentence VACATED and REMANDED to determine the quantity of marijuana for which Villanueva is responsible (the district court need not revisit any other sentencing issues); appeal on departure issue DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. All references are to the Guidelines Manual effective November 1, 2000.
Reference
- Full Case Name
- United States v. Federico VILLANUEVA MAGALLON
- Cited By
- 3 cases
- Status
- Published