Unites States of America v. Veronica Pena-Sarabia

Citations: 297 F.3d 983; 2002 WL 1587675Docket: 01-3228

Court: Court of Appeals for the Tenth Circuit; July 19, 2002; Federal Appellate Court

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Veronica Pena-Sarabia was found in possession of approximately two kilograms of cocaine and a semi-automatic handgun in her home during a warrantless search conducted by police. The district court denied her motion to suppress the evidence obtained during this search and subsequently accepted her conditional guilty plea for possession with intent to distribute cocaine, sentencing her to sixty months in prison under the mandatory minimum sentence of 21 U.S.C. 841(b)(1)(B). The court ruled she was ineligible for "safety valve" sentencing under 18 U.S.C. 3553(f) due to the foreseeability of her husband's possession of the firearm, referencing United States v. Hallum. On appeal, Pena-Sarabia contested the denial of her suppression motion, arguing that the search was not consensual and claimed eligibility for a shorter sentence, asserting she had no knowledge of the firearm. The Tenth Circuit affirmed the district court's denial of the motion to suppress, finding the police testimony credible and determining that her consent was voluntarily given, and remanded the case for resentencing in line with the appellate court's findings. The police had acted without a warrant but were deemed to have obtained valid consent for the search, as the district court found her account of events less credible than that of the officers.

Police conducted a search of Ms. Pena-Sarabia's residence, discovering a kilogram of cocaine next to a loaded 9mm handgun under the bed, and a second kilogram of cocaine in a purse in the closet. Ms. Pena-Sarabia claimed ignorance of the handgun's presence, which the district court accepted, finding she "did not know that the gun was there." She entered a conditional guilty plea while preserving her right to appeal the denial of her motion to suppress evidence. Due to the quantity of drugs, she faced a mandatory minimum sentence of five years under 21 U.S.C. 841(b)(1)(B). Ms. Pena-Sarabia sought relief from this minimum under the "safety valve" provisions of U.S.S.G. 5C1.2, but was denied because 18 U.S.C. 3553(f)(2) prohibits such relief for offenders with a firearm related to the offense. The court ruled that it was foreseeable her husband would possess the gun, making her ineligible for the safety valve, resulting in a five-year prison sentence.

On appeal, Ms. Pena-Sarabia contested the district court's ruling on her motion to suppress, arguing her consent to the search was not given freely and was coerced. The court reviews such motions based on factual findings unless clearly erroneous, considering the evidence favorably to the government. The government must prove consent to a warrantless search was unequivocal, specific, and voluntary, without coercion. Testimony indicated Ms. Pena-Sarabia consented when she responded affirmatively to officers' requests, although she later denied this claim. The district court favored the officers' credible testimony over hers, noting her nervous demeanor. It also clarified that knowledge of the right to refuse consent is not required for consent to be considered voluntary, supporting its findings on witness credibility and the overall evidence.

Ms. Pena-Sarabia's consent to a police search was determined to be voluntary, not resulting from coercion or duress. The court considered factors such as physical mistreatment, threats, and the defendant's mental capacity. Despite Ms. Pena-Sarabia's claims of coercion through "rapid fire questioning" and a "show of authority," Officer Lorenzo testified that she willingly allowed the police entry. There were no allegations of physical mistreatment, threats, or promises made by the police, and Ms. Pena-Sarabia did not contest her mental or physical ability to refuse consent. Therefore, the district court correctly concluded that her consent was valid.

Ms. Pena-Sarabia also challenged her sentencing under the mandatory minimum of 21 U.S.C. 841(b)(1)(B), arguing eligibility for the "safety valve" provisions of U.S.S.G. 5C1.2, despite her co-defendant's firearm possession. She contended that she was unaware of the firearm and thus should not be held accountable for it. The government argued that she should be responsible for her husband’s foreseeable actions in their joint criminal activity. The court noted that under 18 U.S.C. 3553(f), drug offenders may qualify for a reduced sentence if they meet specific criteria, including not possessing a firearm during the offense. 

The court referenced a Tenth Circuit case, Hallum, which allowed for accountability based on another’s firearm possession during joint criminal activity, but concluded this interpretation contradicted established law and was rejected by other circuits. The commentary to U.S.S.G. 5C1.2 clarifies that "defendant" refers only to the individual's own actions and those they directly aided, omitting broader accountability for acts of others in joint criminal enterprises. Therefore, the court found the absence of such language in the safety valve provisions significant in determining Ms. Pena-Sarabia's accountability.

The Hallum decision restrictively interprets the safety valve provision by linking it to the reasonably foreseeable possession of a firearm by a joint criminal actor, effectively adding this as a requirement under U.S.S.G. § 1B1.3(1)(B). This interpretation undermines the explicit language in U.S.S.G. § 5C1.2(2), which states the safety valve applies if the defendant did not possess or induce another to possess a firearm, making the inducement requirement redundant. Additionally, it conflicts with application note four of § 5C1.2, which limits a defendant's accountability strictly to their own conduct and that which they directly influenced, thereby emphasizing that possession by co-conspirators should not affect the defendant's eligibility for the safety valve.

The Hallum interpretation contradicts the congressional intent behind the safety valve, which aims to differentiate less culpable defendants from those facing mandatory minimum sentences. The D.C. Circuit noted that if co-conspirator liability were included in the firearm possession criterion, the safety valve would lose its purpose. Most circuits have rejected Hallum's interpretation, with only the Tenth Circuit siding with it, while other appellate courts assert that a co-conspirator's firearm possession should not be attributed to the defendant for safety valve eligibility.

Consequently, the court concluded that in determining eligibility for the safety valve under § 5C1.2(2), only the defendant's conduct is relevant, excluding co-conspirators' actions unless the defendant induced such possession. In the specific case of Ms. Pena-Sarabia, since her husband's firearm possession was solely relied upon by the district court to deny her access to the safety valve, and given that the government did not contest this finding, the court found that her husband's possession should not be attributed to her. Therefore, the case is remanded for resentencing, while affirming the denial of Ms. Pena-Sarabia's motion to suppress. The opinion clarifies that the court is bound by prior panel precedent unless overturned en banc or by the Supreme Court, and it has decided to overrule Hallum to the extent it conflicts with this ruling.