Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."
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Page 1
F I L E D
United States Court of Appeals
Tenth Circuit
January 9, 2006
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 04-4282
WELDON ANGELOS,
Defendant-Appellant.
_____________________________________
GEORGE M. ANDERSON;
RUSSELL T. BAKER, JR.;
DONALD L. BECKNER;
GRIFFIN B. BELL; HAROLD
J. BENDER; THOMAS K. BERG;
REBECCA A. BETTS; JAMES S.
BRADY; JAMES R. BRITTON;
B. MAHLON BROWN, III; BUCK
BUCHANAN; WAYNE A. BUDD;
DAVID B. BUKEY; ROBERT C.
BUNDY; WILLIAM R. BURKETT;
A. BATES BUTLER, III; MARK W.
BUYCK, JR.; EDWARD N. CAHN;
J. A. TONY CANALES; DAVID J.
CANNON; ZACHARY W. CARTER;
JIM R. CARRIGAN; ROBERT J.
CINDRICH; BENJAMIN R.
CIVILETTI; CHARLES CLARK;
ROBERT J. CLEARY; W. J. MICHAEL
CODY; KENDALL COFFEY; JANICE
MCKENZIE COLE; VERONICA F.
COLEMAN-DAVIS; JAMES F.
COMPANION; WILLIAM B.
CUMMINGS; MARGARET E.
CURRAN; E. BART DANIEL;
JOHN G. DAVIES; ROBERT J.
Page 2
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DEL TUFO; MICHAEL H. DETTMER;
JOSEPH E. DIGENOVA; W. THOMAS
DILLARD; HARRY D. DIXON, JR.;
EDWARD L. DOWD, JR.; RONALD F.
EDERER; JOHN S. EDWARDS;
EDGAR W. ENNIS, JR.; ROBERT B.
FISKE, JR.; J. DON FOSTER; DANIEL
J. FRENCH; SUSAN
GETZENDANNER; JOHN J.
GIBBONS; JONATHAN L.
GOLDSTEIN; TONY M. GRAHAM;
CHARLES E. GRAVES; SAUL A.
GREEN; DAVID WARNER HAGEN;
HAL D. HARDIN; JO ANN HARRIS;
FREDERICK J. HESS; STEPHEN B.
HIGGINS; ROGER HILFIGER;
ROSCOE C. HOWARD, JR.; JAMES A.
HURD, JR.; GUY G. HURLBUTT;
JOHN M. IMEL; BRIAN A. JACKSON;
THOMAS PENFIELD JACKSON;
J. ALAN JOHNSON; JAMES E.
JOHNSON; GAYNELLE G.
JONES; NATHANIEL R. JONES;
DAVID J. JORDAN; NICHOLAS deB.
KATZENBACH; J. RANSDELL
KEENE; JOHN J. KELLY; W.A.
KIMBROUGH, JR.; JOHN E. LAMP;
SCOTT R. LASSAR; GEORGE N.
LEIGHTON; STEPHEN C. LEWIS;
TIMOTHY K. LEWIS; SIDNEY I.
LEZAK; WILLIAM J. LOCKHART;
MARTIN F. LOUGHLIN; ANDREW J.
MALONEY; THOMAS J. MARONEY;
JOHN S. MARTIN, JR.; SHERRY S.
MATTEUCCI; TED L. MCBRIDE;
JAY P. MCCLOSKEY; A. MELVIN
MCDONALD; EDWARD B.
MCDONOUGH, JR.; FRANK J.
MCGARR; PATRICK M.
MCLAUGHLIN; H. CURTIS
MEANOR; KENNETH J. MIGHELL;
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ABNER J. MIKVA; IRVIN B.
NATHAN; JAMES F. NEAL;
WILLIAM A. NORRIS; K.
WILLIAM O'CONNOR; DENISE
O'DONNELL; JOHN O. OLSON;
JEROME F. O'NEILL; STEPHEN M.
ORLOFSKY; A. JOHN
PAPPALARDO; ROBERT M.
PARKER; LARRY D. PATTON;
TERRY L. PECHOTA; LAYN R.
PHILLIPS; HAROLD J. PICKERSTEIN;
RICHARD J. POCKER; SAM C.
POINTER, JR.; GEORGE C. PRATT;
WILLIAM S. PRICE; JOHN W. RALEY,
JR.; RONALD S. REED, JR.; RONALD
L. RENCHER; CHARLES B.
RENFREW; JANET RENO; JAMES H.
REYNOLDS; JAMES G. RICHMOND;
JOSE DE JESUS RIVERA; WILLIAM
W. ROBERTSON; JAMES K.
ROBINSON; JAMES A. ROLFE;
BENITO ROMANO; RICHARD A.
ROSSMAN; STANLEY J.
ROSZKOWSKI; ROBERT J. ROTH;
JOSEPH RUSSONIELLO; ROBERT W.
RUST; STEPHEN H. SACHS; H. LEE
SAROKIN; DAVID M. SATZ, JR.;
CARL SCHNEE; WILLIAM S.
SESSIONS; ABRAHAM D. SOFAER;
HENRY L. SOLANO; MICHAEL R.
SPAAN; DONALD K. STERN;
HERBERT J. STERN; JOHN W.
STOKES, JR.; J. PRESTON STROM,
JR.; THOMAS P. SULLIVAN;
FREDERICK W. THIEMAN
PAUL R. THOMSON, JR.; VICTORIA
TOENSING; STANLEY A. TWARDY,
JR.; PETER F. VAIRA; PATRICIA
M. WALD; ATLEE W. WAMPLER, III
EDWARD G. WARIN; JAMES J.
WEST; PAUL L. WESTBERG; DANIEL
Page 4
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E. WHERRY; GEORGE W. WHITE;
JOSEPH M. WHITTLE; FRANCIS M.
WIKSTROM; WILLIAM D. WILMOTH;
ALFRED WOLIN; RONALD G.
WOODS; BOB WORTHAM; SHARON
J. ZEALEY; DONALD E. ZIEGLER,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
(D.C. No. 02-CR-708 PGC)
Robert A. Lund, Assistant United States Attorney (Paul M. Warner, United States
Attorney, with him on the briefs), District of Utah, Salt Lake City, UT, for Plaintiff-
Appellee.
Jerome H. Mooney, Mooney Law Firm, Salt Lake City, UT; Erik Luna, Salt Lake City,
UT, attorneys for Defendant-Appellant.
Jeffrey B. Sklaroff and Harry H. Rimm, Greenberg Traurig, New York, NY, filed a brief
on behalf of Amici Curiae.
Before BRISCOE, ANDERSON and O’BRIEN, Circuit Judges.
BRISCOE, Circuit Judge
Defendant Weldon Angelos was convicted of multiple drug, firearms, and money
laundering offenses and sentenced to a term of imprisonment of fifty-five years and one
day. Angelos now appeals his convictions and sentence. We exercise jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
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I.
In May and June of 2002, the government, with the assistance of a confidential
informant (CI), conducted three controlled purchases of marijuana from Angelos. On
each of the three occasions, the CI purchased eight ounces of marijuana from Angelos in
exchange for cash. On two of the three occasions, the CI observed Angelos in possession
of a 10 millimeter Glock pistol.
Angelos’s involvement in the three controlled purchases led to his indictment by a
federal grand jury on November 13, 2002. The indictment charged Angelos with three
counts of marijuana distribution in violation of 21 U.S.C. § 841(a)(1), one count of
carrying or possessing a firearm during or in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c), and one count of possessing a firearm with an obliterated
serial number in violation of 18 U.S.C. § 922(k).
Angelos was subsequently arrested on November 15, 2002. A consensual search
of Angelos’s apartment produced three pounds of marijuana, three firearms, a large
amount of cash, and two opiate suckers. A subsequent search at a house leased by
Angelos produced, among other things, additional marijuana and several large duffle bags
that contained marijuana residue.
On June 18, 2003, the government obtained a superseding indictment charging
Angelos with seventeen criminal counts, including additional marijuana distribution
counts and additional § 924(c) counts. On October 1, 2003, following the completion of a
criminal investigation by the Internal Revenue Service, the government obtained a second
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superseding indictment charging Angelos with twenty criminal counts, including: six
counts of distributing marijuana in violation of 21 U.S.C. § 841(a)(1) (Counts 1, 3, 5, 9,
13, 15); five counts of possessing a firearm during and in relation to a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1) (Counts 2, 4, 10, 14, 16); two counts of
possessing a stolen firearm in violation of 18 U.S.C. § 922(j) (Counts 6, 11); one count of
possessing a firearm which had the importer’s and manufacturer’s serial number
removed, obliterated and altered, in violation of 18 U.S.C. § 922(k) (Count 7); three
counts of possessing a firearm while being an unlawful user of controlled substances in
violation of 18 U.S.C. § 922(g)(3) (Counts 8, 12, 17); one count of engaging in and
attempting to engage in a monetary transaction through or to a financial institution in
criminally derived property in violation of 18 U.S.C. § 1957 (Count 18); and two counts
of conducting and attempting to conduct financial transactions which involved the
proceeds of marijuana distribution in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (Counts
19, 20).
The case proceeded to trial in December 2003, where a jury found Angelos guilty
of sixteen counts, including three § 924(c) counts. Following trial, a presentence
investigation report (PSR) was prepared which recommended that Angelos, who had no
prior adult criminal history, be sentenced to a term of imprisonment of sixty-one and a
half (61.5) years, including six and a half (6.5) years for the drug and money laundering
convictions and fifty-five (55) years for the three § 924(c) convictions. After receiving
the PSR, the district court expressed concern about imposing what it characterized as “an
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extraordinarily long prison term,” and thus directed the parties to file briefs addressing a
number of sentencing-related issues, including whether the mandatory minimum
sentences required under § 924(c) were consistent with the Eighth Amendment’s
prohibition against cruel and unusual punishment. App. at 106. Angelos argued in
response that the fifty-five year sentence required to be imposed under § 924(c) violated
the Eighth Amendment’s prohibition against cruel and unusual punishment. Angelos also
asserted an Equal Protection challenge to § 924(c).
On November 16, 2004, the district court sentenced Angelos to a term of
imprisonment of fifty-five years and one day. In doing so, the district court rejected
Angelos’s Eighth Amendment and Equal Protection challenges to his sentence.
II.
Denial of motion to suppress
On December 16, 2002, Chelsea Davenport, Angelos’s former girlfriend, advised
law enforcement agents that Angelos was hiding drugs, firearms, and money at a rental
house located at 1701 East Fort Union Boulevard (the Fort Union house) in Salt Lake
City. App. at 35-36. In particular, Davenport advised that she had observed marijuana in
the trunk of a black BMW automobile parked in the garage at the Fort Union house (the
same BMW that Angelos was observed driving when he sold marijuana to the CI), and
that additional drugs, guns, and money were located in a safe in the basement of the Fort
Union house. Id. Based upon this information, Federal Bureau of Investigation (FBI)
agent Juan Becerra prepared an affidavit in support of a search warrant for the Fort Union
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house and the BMW. Id. at 35-38. In the affidavit, Becerra stated:
Your Affiant desires to seize the safe belonging to Angelos, [and] the black
1993 BMW 318I used during the sale of drugs to [the CI]. Your Affiant
also requests permission to seize any drug paraphernalia, illegal narcotics,
any proceeds derived from these activities, any photographs, video tapes or
other items pertaining to the sale and distribution of illegal narcotics and
street gang affiliation and activities.
Id. at 37. Consistent with the practice in the District of Utah, Becerra presented his
affidavit to an Assistant United States Attorney (AUSA) for preparation of an application
for a search warrant and a proposed search warrant. Unlike the broader language
contained in Becerra’s affidavit, both the application and the proposed search warrant
prepared by the AUSA requested permission to seize only “[m]arijuana and other indicia
of narcotics in the trunk of the vehicle, 1993 BMW 318i, License Plate #215J3” and the
“personal safe located in the basement of the residence containing drugs, firearms, and
money.” Id. at 34, 40. The proposed search warrant was subsequently signed by a
federal judge.
When law enforcement officers executed the search warrant, they first conducted a
protective sweep of all three floors of the Fort Union house in order to ensure their safety.
Upon entering the basement, the officers immediately detected a strong odor of raw
marijuana. The odor seemed to be emanating from approximately eighteen large duffle
bags that were in plain view. When the officers looked more closely at the duffle bags,
they observed small amounts of marijuana residue on the exterior of the bags.
Accordingly, the officers seized those bags. Six similar duffle bags, that also smelled of
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raw marijuana, were located in plain view in the garage of the Fort Union house and
seized by the officers. In addition to seizing the duffle bags and the items specifically
listed in the search warrant (i.e., narcotics from the trunk of the BMW and the safe
located in the basement), the officers executing the warrant seized numerous other items
from throughout the Fort Union house, including firearms, documents, ammunition, a
computer, gang-related clothing, and electronic scales.
Angelos moved to suppress the items seized from the Fort Union house. After
conducting an evidentiary hearing, the district court denied Angelos’s motion. On appeal,
Angelos contends the district court erred in denying his motion to suppress. In reviewing
the district court’s decision, we “view the evidence in the light most favorable to the
government, accept the district court’s findings of fact unless clearly erroneous, and
review de novo the ultimate determination of reasonableness under the Fourth
Amendment.” United States v. Katoa, 379 F.3d 1203, 1205 (10th Cir. 2004).
a) Exceeding scope of search warrant
Angelos contends, as he did below, that the agents executing the search warrant
exceeded the scope of the warrant by seizing items other than those specifically listed in
the warrant. In ruling on Angelos’s motion to suppress, the district court agreed “that the
search warrant itself authorized only a search of the safe and the car,” and did not extend
to the Fort Union house as a whole. App. at 101. However, the district court concluded
that “it was objectively reasonable for the [executing] officers to believe that the warrant
authorized them to search the entire residence.” Id. In reaching this conclusion, the
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district court noted that “the officers specifically sought a warrant to obtain the items
specified in Special Agent Becerra’s affidavit, which plainly established probable cause
to search not just the basement for the safe but the entire residence.” Id. Further, the
district court noted that “the warrant twice generally stated the location of the search as
the ‘residence/premises: 1701 East Fort Union Blvd, Salt Lake City, Utah 84121,” and
“also referred to the affidavit as the basis for probable cause.” Id. These references, the
district court concluded, could have led Becerra to reasonably believe that the “warrant
authorized him to search the entire residence.” Id. In sum, the district court concluded “it
was objectively reasonable for the agents to think (and that they did in fact think) that
they had obtained a search warrant to search the entire residence.” Id.
“[T]he Fourth Amendment requires search warrants to ‘particularly describ[e] the
place to be searched, and the persons or things to be seized . . . .’” Katoa, 379 F.3d at
1207 (quoting Fourth Amendment). The warrant at issue here met the Fourth
Amendment’s particularity requirement by specifying the items to be seized from the Fort
Union house, i.e., “[m]arijuana and other indicia of narcotics in the trunk of the vehicle,
1993 BMW 318i, License Plate #215J3” and the “personal safe located in the basement of
the residence containing drugs, firearms, and money.” App. at 34, 40. Further, the
warrant, on its face, contained no constitutional or clerical defects, and there was no
ambiguity in the terms used in the warrant.
That leads to the question of the precise scope of the warrant. We review de novo
the scope of the search warrant at issue, employing “a standard of practical accuracy
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rather than technical precision.” United States v. Ortega-Jiminez, 232 F.3d 1325, 1328
(10th Cir. 2000) (internal quotation marks omitted). Although the district court
concluded that the scope of the warrant was limited to the specific items listed on its face
(i.e., the narcotics in the trunk of the BMW and the safe located in the basement), the
government contends that the scope of the warrant included the entire Fort Union house.
More specifically, the government asserts that we should adopt “a practical reading of the
warrant” and, in doing so, should allow the warrant to be clarified by the supporting
affidavit. Govt. Br. at 84.
In support of its arguments, the government cites to a single case, i.e., Ortega-
Jiminez. In that case, law enforcement officers obtained a search warrant that authorized
the search of a storage unit and any “persons and vehicles of individuals present and
arriving” at the unit. 232 F.3d at 1328. In executing the warrant, the officers searched
the person and vehicle of the defendant, who had been detained by authorities and
brought to the storage unit prior to the warrant being issued. The district court, pursuant
to the defendant’s motion, suppressed the evidence seized from the defendant and his
vehicle, concluding the defendant could not fairly have been considered “present” at the
storage unit because he had been moved there by the police. On appeal, we noted that the
term “present,” as used in the search warrant, “might technically be interpreted to mean
those who are voluntarily present at the time the warrant is signed . . . .” Id. at 1329.
However, we concluded it was appropriate to “determine the practical meaning of the
term . . . .” Id. (italics in original). In doing so, we turned to the affidavit submitted in
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support of the warrant, which clearly indicated that the defendant was being detained at
the storage unit. In light of this information, we held that “[a] practical reading of the
term ‘present’ must include those the judge knew actually were present at that time,” and
thus the search of the defendant and his vehicle fell “within the scope of the warrant.” Id.
Although Ortega-Jiminez allows a court to adopt a “practical reading” of a
disputed term in a search warrant, it is clear that there are no such terms in the search
warrant at issue here. To the contrary, as noted, the warrant describes with particularity,
and without ambiguity, the items to be seized from the Fort Union home. Thus, we
conclude that none of the terms in the warrant can be read “with practicality” to
encompass the entire premises.
That conclusion, in turn, requires us to decide whether the officers executing the
warrant acted reasonably in exceeding the scope of the warrant and seizing items
throughout the house. Although the government makes reference to the good faith
exception announced by the Supreme Court in United States v. Leon, 468 U.S. 897
(1984), we conclude that exception is inapplicable here. In Leon, the Court held that
evidence obtained pursuant to a constitutionally defective search warrant is admissible at
trial if the officers executing the search warrant reasonably relied on the warrant and there
is no evidence the officers mislead the magistrate issuing the warrant. Id. at 920-21.
Notably, the Court in Leon made reference to officers “properly execut[ing] [a] warrant
and search[ing] only those places and for those objects that it was reasonable to believe
were covered by the warrant.” 468 U.S. at 918, n.19. In turn, we have held that “[t]he
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Leon good faith exception will not save an improperly executed warrant.” United States
v. Rowland, 145 F.3d 1194, 1208 n.10 (10th Cir. 1998). Given the circumstances of the
search of the Fort Union house, it is apparent that the problem lies in the execution, and
not the constitutionality, of the search warrant.
Angelos contends there are only two possible explanations for why the officers in
this case exceeded the scope of the search warrant: either they “knew the limits of the
warrant and decided to disregard them, or [they] never bothered to read the warrant
itself.” Aplt. Br. at 76. Either way, he argues, the officers are not entitled to rely on any
type of good faith exception. We agree. Assuming the agents executing the warrant
actually read it, they reasonably should have noticed its limited scope. In turn, the agents
could have, upon realizing that the scope of the warrant was narrower than requested by
Agent Becerra, contacted the issuing judge by phone in an attempt to receive
authorization to expand the scope of the search to include the entire premises. See Katoa,
379 F.3d at 1208 (upholding search as reasonable where officers executing search, upon
realizing that the warrant contained a defect or omission, made immediate contact with
the issuing magistrate, received authorization for their actions, and the judge signed the
warrant upon the officers’ return). By failing to do so, the officers cannot be said to have
acted reasonably.
That leaves only the question of what evidence should have been suppressed.
Angelos contends that the proper remedy for the Fourth Amendment violation in this case
is suppression of all the evidence seized by the officers, and not just the evidence that
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exceeded the scope of the warrant. Aplt. Br. at 74. He does not, however, provide any
authority to support this remedy. In the absence of such authority, we conclude that only
the seized evidence that exceeded the scope of the search warrant, and that was not
covered by the plain smell/view exception, should have been suppressed. See generally
United States v. Harris, 313 F.3d 1228, 1233 (10th Cir. 2002) (noting the general rule that
“[a]ny evidence obtained as a result of an illegal search and seizure is subject to the
exclusionary rule--i.e., the evidence cannot be used in a criminal proceeding against the
victim of the illegal search and seizure.”).
b) Plain smell exception
Angelos contends the district court erred in refusing to suppress the group of duffle
bags that were seized by officers from the basement and garage of the Fort Union house
due to the smell of raw marijuana emanating from them. Angelos does not deny that the
officers smelled raw marijuana coming from the duffle bags. Instead, Angelos argues
that, because the officers secured the house by performing a protective sweep, “[t]here
was no exigent circumstance for [them] to rummage through the basement and garage in
an attempt to locate the source of the smell.” Aplt. Br. at 81.
We disagree. The “plain view” doctrine allows a law enforcement officer to seize
evidence of a crime, without violating the Fourth Amendment, if “(1) the officer was
lawfully in a position from which the object seized was in plain view, (2) the object’s
incriminating character was immediately apparent (i.e., there was probable cause to
believe it was contraband or evidence of a crime), and (3) the officer had a lawful right of
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Although Angelos contends a protective sweep is justified only pursuant to an
1
arrest, we have previously upheld a search where the officers conducted a protective
sweep of a house which was the subject of a search warrant. See United States v. King,
222 F.3d 1280, 1283 (10th Cir. 2000).
In its appellate brief, the government argues that several other items, including a
2
rifle, surveillance equipment, body armor, and booby traps “were all discovered and
-15-
access to the object.” United States v. Thomas, 372 F.3d 1173, 1178 (10th Cir. 2004); see
Horton v. California, 496 U.S. 128, 136-37 (1990). “The ‘plain smell’ doctrine,” in turn,
“is simply a logical extension of the ‘plain view’ doctrine . . . .” App. at 102; e.g., United
States v. Rhiger, 315 F.3d 1283, 1290 (10th Cir. 2003) (concluding that various factors,
including agents’ detection of strong odor of cooking methamphetamine, justified
warrantless search); United States v. Clayton, 210 F.3d 841, 845 (8th Cir. 2000)
(concluding that officer executing arrest warrant “quickly developed probable cause for a
search based on his immediate perception of an odor associated with methamphetamine
production”); United States v. Haley, 669 F.2d 201, 203 (4th Cir. 1982) (concluding that
the odor given off by a container can justify invocation of the “plain view” doctrine).
Here, the district court found, and Angelos does not dispute, that the officers executing
the search warrant (1) were lawfully in the Fort Union house, (2) had lawful authority to
conduct a protective sweep of the entire premises, including the garage and basement , (3)
1
smelled a strong odor of raw marijuana coming from duffle bags in the basement and
garage, all of which were in plain sight, and (4) observed residue of marijuana on the
duffle bags in the basement. We conclude these circumstances, considered together,
clearly justified the seizure of the duffle bags.
2
Page 16
seized because they were in plain view of the officers.” Govt. Br. at 88. We conclude it
is unnecessary to address these arguments in detail, given the strength of the
government’s evidence underlying the offenses of conviction. In other words, even
assuming these items were not properly seized under the plain view doctrine and should
have been suppressed, we conclude their introduction at trial was harmless beyond a
reasonable doubt.
-16-
c) Was admission of the suppressible evidence harmless?
The government contends that, even if some of the evidence seized from the Fort
Union house should have been suppressed, its admission at trial was harmless. Because
the error was of constitutional magnitude, we apply the harmless error standard outlined
in Chapman v. California, 386 U.S. 18 (1967). See United States v. Fellers, 397 F.3d
1090, 1098 (8th Cir. 2005). The Chapman standard requires the government to
demonstrate that the error was “harmless beyond a reasonable doubt.” 386 U.S. at 24.
After carefully reviewing the record on appeal, including the trial transcript, we
agree with the government that the admission of evidence improperly seized during the
search of the Fort Union house was harmless beyond a reasonable doubt. To begin with,
we note that the jury acquitted Angelos on three charges arising out of certain items
seized at the Fort Union house: a handgun and a rifle, which formed the basis for two §
924(c) charges (Counts 14 and 16 of the second superseding indictment); and marijuana
found in the Fort Union house, which formed the basis of a charge of possessing with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count 15 of the second
superseding indictment). The only count of conviction directly arising out of the search
of the Fort Union house was Count 13 of the second superseding indictment, which
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charged Angelos with possessing with intent to distribute marijuana located in the trunk
of the black BMW parked in the garage of the Fort Union house. As outlined above, the
search warrant for the Fort Union house specifically listed, as an item to be seized, the
marijuana in the trunk of the BMW. Thus, we find no basis for concluding that this
conviction was tainted by introduction of any improperly seized evidence.
It is true that the jury also found Angelos guilty of Count 20 of the second
superseding indictment, which charged him with violating 18 U.S.C. § 1956(a)(1)(A)(i)
in December 2002 by paying rent for the Fort Union house with proceeds of marijuana
distribution with the intent to use the Fort Union house to “store marijuana, cash, and
other items related to the distribution of and possession with intent to distribute marijuana
. . . .” App. at 23. Our review of the record on appeal, however, leads us to conclude that
the properly admitted evidence in support of this conviction was so substantial “that it
assured beyond a reasonable doubt that the jury would have returned a conviction even
absent” any improperly admitted evidence. Fellers, 397 F.3d at 1099. For example,
Angelos’s former girlfriend, Chelsea Davenport, testified that she personally observed
Angelos sell marijuana on a daily basis, and that Angelos sometimes did so at the Fort
Union house. Davenport further testified that, on one occasion, she traveled with Angelos
and two other individuals to California and returned to Salt Lake City with a trunkload of
duffel bags containing marijuana. Eric Lerohl, an FBI agent who was involved in the
search of the Fort Union house, testified that the entire house emitted a very distinct odor
of raw marijuana. Together, the testimony of Davenport and Lerohl was more than ample
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to have allowed the jury to reasonably conclude that the duffle bags seized during the
search of the Fort Union house, which smelled of raw marijuana and contained marijuana
residue, were the same duffle bags used by Angelos to transport marijuana from
California to Salt Lake City. In light of this evidence, the admission of any items
improperly seized from the Fort Union house was merely cumulative and, in our view,
harmless. In other words, any improperly seized evidence was not critical to the jury’s
finding that Angelos utilized the Fort Union house for his marijuana-trafficking activities.
Lastly, we conclude that the evidence in support of Angelos’s remaining
convictions was so substantial that it rendered harmless the admission of any evidence
improperly seized from the Fort Union house. In particular, we note that the evidence in
support of Angelos’s § 924(c) convictions was overwhelming. The first two of those
convictions were tied to Angelos’s possession of a 10 millimeter Glock pistol during the
first and second controlled purchases. At trial, the CI testified that during the first
controlled purchase Angelos had the pistol tucked between the front seats of his vehicle,
and during the second controlled purchase was wearing the pistol in an ankle holster.
Sergeant Mazuran in turn testified that the CI reported these same observations
immediately following each of the first two controlled purchases. Christopher Maez and
Scott Hansen, deputies with the Salt Lake County Sheriff’s Office, testified that on July
10, 2002, they responded to a fight involving Angelos and, during the course of
investigating the incident, seized a 10 millimeter Glock pistol that Angelos was wearing
in an ankle holster. Lastly, Chelsea Davenport, Angelos’s former girlfriend, testified that,
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during the course of their relationship, Angelos consistently carried a black gun in an
ankle holster, particularly when selling drugs. Together, this evidence overwhelmingly
supported the jury’s findings that Angelos knowingly carried and possessed the pistol
during the first and second controlled purchases. Angelos’s third § 924(c) conviction was
based upon three weapons seized during the post-arrest search of his apartment. Notably,
Angelos does not dispute that he possessed those weapons. Nor does he seriously dispute
that he used that apartment for the distribution of drugs. Thus, we conclude that the
admission of evidence improperly seized from the Fort Union house was harmless with
respect to this final § 924(c) conviction.
District court’s refusal to admit police reports
Angelos contends the district court erred in refusing to admit contemporaneous
law enforcement reports of the first two controlled purchases. Although Angelos was
charged with and convicted of possessing a firearm during those first two transactions,
Angelos asserts that the contemporaneous law enforcement reports of those two
transactions contained no mention of a firearm and thus were relevant and admissible.
We review a district court’s evidentiary rulings for abuse of discretion. United States v.
Montague, 421 F.3d 1099, 1101 (10th Cir. 2005). Under that standard, we will reverse
“only for a clearly erroneous finding of fact or an erroneous conclusion of law or . . . a
clear error in judgment.” Id. at 1102 (internal quotation marks omitted).
At trial, the law enforcement officer who drafted the contemporaneous reports,
Sergeant Mazuran, testified on direct examination that, immediately following the first
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two transactions, the CI reported observing Angelos in possession of a gun (the CI
likewise testified to the same thing). On cross-examination by Angelos’s counsel,
Mazuran admitted that he failed to include this information in the contemporaneous
reports he prepared. In light of Mazuran’s testimony, the admission of the reports
themselves would have been only cumulative. Indeed, at one point during the trial,
Angelos’s counsel, in response to the district court’s question whether he was seeking to
admit the reports, stated that he wanted the reports admitted but did not want them to go
to the jury. Aplee. App. at 569. Although Angelos’s counsel subsequently changed his
mind and asked for the reports to be admitted, the district court rejected that request and
Angelos’s counsel made no attempt to explain why the reports were admissible or to
question the district court’s ruling. Accordingly, we conclude the district court did not
abuse its discretion in refusing to admit the reports.
Eighth Amendment challenge to Angelos’s sentences
Angelos, joined in an amicus brief filed by a group of individuals, including
former federal judges, United States Attorneys General, and high-ranking United States
Department of Justice officials, contends the district court erred in concluding that the
fifty-five year sentence mandated in his case by § 924(c) did not violate the Eighth
Amendment’s prohibition against cruel and unusual punishment. We review de novo the
question of whether a criminal sentence violates the Eighth Amendment. E.g., United
States v. Fernandez, 388 F.3d 1199, 1258 (9th Cir. 2004); United States v. Myers, 280
F.3d 407, 416 (4th Cir. 2002).
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“The Eighth Amendment . . . contains a ‘narrow proportionality principle’ that
‘applies to noncapital sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003) (quoting
Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991)). Under this narrow proportionality
principle, the Eighth Amendment “does not require strict proportionality between crime
and sentence.” Id. at 23. “Rather, it forbids only extreme sentences that are ‘grossly
disproportionate’ to the crime.” Id. (quoting Harmelin, 501 U.S. at 1001 (Kennedy, J.,
concurring in part and concurring in the judgment)).
Although the Supreme Court has reviewed Eighth Amendment challenges to a
number of state and federal sentences, it has struck down only two of them over the past
century. In Weems v. United States, 217 U.S. 349, 367 (1910), the Court invalidated
under the Eighth Amendment a sentence of fifteen years in chains and at hard labor, plus
permanent surveillance and civil disabilities, for the crime of falsifying a public
document. Seventy-three years later, in Solem v. Helm, 463 U.S. 277 (1983), the Court
invalidated under the Eighth Amendment a sentence of life imprisonment without the
possibility of parole imposed under South Dakota law against a nonviolent recidivist
whose final crime was writing a “no account” check with the intent to defraud.
In contrast to these two cases, the Supreme Court has rejected Eighth Amendment
challenges to the following sentences:
• A life sentence, with the possibility of parole, under a Texas recidivist
statute for successive convictions of (1) fraudulent use of a credit card to
obtain $80 worth of goods or services, (2) passing a forged check in the
amount of $28.36, and (3) obtaining $120.75 by false pretenses. Rummel v.
Estelle, 445 U.S. 263, 285 (1980).
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• A forty-year sentence for possession and distribution of 9 ounces of
marijuana. Hutto v. Davis, 454 U.S. 370, 375 (1982).
• A life sentence, without the possibility of parole, for possession of more
than 650 grams of cocaine. Harmelin, 501 U.S. at 1005.
• A twenty-five year to life sentence imposed under a California recidivist
statute for the offense of felony grand theft (i.e., stealing three golf clubs
worth approximately $1,200). Ewing, 538 U.S. at 30-31.
• Two consecutive twenty-five-year to life sentences under a California
recidivist statute for two counts of petty theft. Lockyer v. Andrade, 538
U.S. 63, 77 (2003).
Considered together, these cases clearly support the Supreme Court’s recent statement in
Andrade that “[t]he gross disproportionality principle reserves a constitutional violation
for only the extraordinary case.” 538 U.S. at 76.
Applying these principles to the case at hand, we conclude that this is not an
“extraordinary” case in which the sentences at issue are “grossly disproportionate” to the
crimes for which they were imposed. The Supreme Court has noted that the “basic
purpose” of § 924(c) is “to combat the ‘dangerous combination’ of ‘drugs and guns.’”
Muscarello v. United States, 524 U.S. 125, 126 (1998) (quoting Smith v. United States,
508 U.S. 223, 240 (1993)). The Court has also noted that “the provision’s chief
legislative sponsor . . . said that the provision seeks ‘to persuade the man who is tempted
to commit a Federal felony to leave his gun at home.’” Id. (quoting 114 Cong. Rec.
22231 (1968) (Rep. Poff)). In addition, the Court has concluded that it was entirely
rational for Congress to penalize the mere presence of a firearm during a drug transaction:
“Whether guns are used as the medium of exchange for drugs sold illegally or as a means
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to protect the transaction or dealers, their introduction into the scene of drug transactions
dramatically heightens the danger to society.” Smith, 508 U.S. at 239 (internal quotation
marks omitted). In this same vein, the Third Circuit has held that “[i]t is likely that
Congress,” in enacting § 924(c), “meant . . . to protect our communities from violent
criminals who repeatedly demonstrate a willingness to employ deadly weapons by
punishing them more harshly.” United States v. Couch, 291 F.3d 251, 255 (3d Cir. 2002).
In sum, the lengthy sentences mandated by § 924(c) were intended by Congress to (a)
protect society by incapacitating those criminals who demonstrate a willingness to
repeatedly engage in serious felonies while in possession of firearms, and (b) to deter
criminals from possessing firearms during the course of certain felonies. Notably, both of
these penological theories have been held by the Supreme Court to be valid and subject to
deference by the courts. See Ewing, 538 U.S. at 24-28; Harmelin, 501 U.S. at 998-99.
Although Angelos attempts to downplay the nature of his crimes, the record on
appeal clearly supports the jury’s findings that Angelos possessed a handgun during the
course of the first two controlled purchases, and likewise possessed firearms at his
apartment in conjunction with drug-trafficking materials. All of these firearms appear to
have facilitated his drug trafficking by, if nothing else, providing protection from
purchasers and others. Although Angelos emphasizes that he never used any of the
firearms, his possession of the firearms clearly heightened the threat of danger to society.
In particular, it undoubtedly increased the likelihood of violence occurring to neighbors in
and around the residences where the firearms were maintained, as well as to others that
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happened to be in the vicinity of wherever he chose to conduct his drug transactions.
It is also important to note that Angelos’s possession of firearms facilitated his
possession and distribution of illegal drugs. In Harmelin, the Supreme Court emphasized
the seriousness of drug trafficking crimes, noting that the “[p]ossession, use, and
distribution of illegal drugs represent ‘one of the greatest problems affecting the health
and welfare of our population.’” 501 U.S. at 1002 (quoting Treasury Employees v. Von
Raab, 489 U.S. 656, 668 (1989)). In particular, “drugs relate to crime in at least three
ways: (1) A drug user may commit crime because of drug-induced changes in
physiological functions, cognitive ability, and mood; (2) A drug user may commit crime
in order to obtain money to buy drugs; and (3) A violent crime may occur as part of the
drug business or culture.” Id. at 1002. Thus, as in Harmelin, Angelos’s “suggestion that
his crime was nonviolent . . . is false to the point of absurdity.” Id. at 1002. “To the
contrary,” his “crime[s] threatened to cause grave harm to society.” Id.
Thus, Congress “could with reason conclude that the threat posed to the individual
and society” by possessing firearms in connection with serious felonies, in particular
drug-trafficking crimes, was “momentous enough to warrant the deterrence and
retribution” of lengthy consecutive sentences, such as those imposed on Angelos in this
case. Id. at 1003. In turn, that is enough to conclude that the sentences imposed on
Angelos are not grossly disproportionate to his crimes. Id. at 1004 (“The severity of
petitioner’s crimes brings his [life sentence without parole] within the constitutional
boundaries established by our prior decisions.”).
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The district court reached this same conclusion, but took a somewhat different
route. The district court initially concluded that it was required to examine three
“factors” first mentioned in Justice Powell’s dissenting opinion in Davis, and
subsequently discussed in Solem and Harmelin: “(1) the nature of the crime and its
relation to the punishment imposed, (2) the punishment for other offenses in this
jurisdiction, and (3) the punishment for similar offenses in other jurisdictions.” App. at
175. Applying these factors, the district court concluded that “the 55-year enhancement”
it was required to impose pursuant to § 924(c) was grossly disproportionate to the crimes
committed by Angelos. Id. at 177. In support of this conclusion, the district court stated
that Angelos “did not engage in force or violence, or threats of force or violence . . . .” Id.
Further, the district court noted that, under the Sentencing Guidelines, the penalty for
Angelos’s “firearms conduct” would be “about 24 months . . . .” Id. With respect to the
second “factor,” the district court concluded that § 924(c) effectively treated Angelos “in
the same manner as, or more severely than, criminals who have committed far more
serious crimes.” Id. at 178 (internal quotation marks omitted). With respect to the third
factor, the district court concluded that Angelos’s sentence under § 924(c) was “longer
than he would receive in any of the fifty states.” Id. In sum, the district court concluded
that analysis of these three factors led “to the conclusion that . . . Angelos’ sentence
violate[d] the Eighth Amendment.” Id. at 179. However, the district court concluded that
the Supreme Court’s decision in Davis prevented it from declaring Angelos’s sentence
violative of the Eighth Amendment. Id. More specifically, the district court noted that “if
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40 years in prison for possessing nine ounces of marijuana d[id] not violate the Eighth
Amendment, it [wa]s hard to see how 61 years [the sentence urged by the government in
this case] for distributing sixteen ounces (or more) would do so.” Id.
Angelos argues that the district court erred in concluding that the Supreme Court’s
decision in Davis remains good law and in turn concluding that the decision in Davis
required the district court to reject Angelos’s Eighth Amendment challenge to his
sentence. The flaw in Angelos’s argument is his assertion that Davis is no longer good
law. Although the Court in Davis rejected application of the three-factor test later
discussed in Solem and Harmelin, it is the ultimate holding in that case (i.e., that a forty-
year sentence for a marijuana trafficking crime does not violate the Eighth Amendment)
that remains important. Further, the Supreme Court has continued to recognize and
discuss Davis anytime it has been faced with an Eighth Amendment challenge to a
sentence – thereby clearly indicating that the holding in Davis remains “good law.”
The amici “suggest that once [Harmelin’s] three factor test has been satisfied, the
analysis ends, and a finding that a sentence is unconstitutional under Harmelin is not
inconsistent with Davis.” This suggestion, however, is only partially correct. As noted in
Hawkins v. Hargett, 200 F.3d 1279, 1282 (10th Cir. 1999), “Justice Kennedy’s opinion in
Harmelin . . . sets forth the applicable Eighth Amendment proportionality test.” Under
that test, a court first examines whether the sentence at issue is grossly disproportionate to
the crime for which it was imposed. Id. If there is no gross disproportionality, that is the
end of the analysis; only if gross disproportionality is found must a court “proceed to the
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comparative analyses” of the second and third factors. Id.
Importantly, however, that does not change the outcome here because, for the
reasons discussed in detail above, it is clear that the first, and controlling, “factor” in
Harmelin, i.e., whether the sentence at issue is grossly disproportionate to the crime, has
not been satisfied. Although the district court concluded that Angelos’s sentence was
disproportionate to his crimes, we disagree. In our view, the district court failed to accord
proper deference to Congress’s decision to severely punish criminals who repeatedly
possess firearms in connection with drug-trafficking crimes, and erroneously downplayed
the seriousness of Angelos’s crimes. Although it is true that Angelos had no significant
adult criminal history, that appears to have been the result of good fortune rather than
Angelos’s lack of involvement in criminal activity. The evidence presented by the
government at trial clearly established that Angelos was a known gang member who had
long used and sold illicit drugs. Further, the government’s evidence established that, at
the time of his arrest, Angelos was a mid-to-high drug dealer who purchased and in turn
sold large quantities of marijuana. In addition, the government’s evidence established
that Angelos possessed and used a number of firearms, some stolen, to facilitate his drug-
dealing acitivities. Lastly, the evidence established that although Angelos had some
involvement in the music industry, he failed to financially profit from that involvement
and indeed never reported any positive earnings to the Internal Revenue Service. Thus,
the only reasonable inference that could be drawn was that Angelos’s sole source of
income was his drug-trafficking operations.
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In sum, we conclude there is no merit to Angelos’s Eighth Amendment challenge
to his sentence under § 924(c). See United States v. Beverly, 369 F.3d 516, 537 (6th Cir.
2003) (rejecting Eighth Amendment challenge to § 924(c) sentences and noting that “the
Supreme Court has never held that a sentence to a specific term of years, even if it might
turn out to be more than the reasonable life expectancy of the defendant, constitutes cruel
and unusual punishment.”).
Equal Protection challenge to Angelos’s sentences
Angelos also challenges his sentence on Equal Protection grounds, arguing that his
sentence is the product of “an irrational legislative scheme that implicates the judicial
branch’s core duty of criminal sentencing and entails incomparable consequences for the
individual defendant.” Aplt. Br. at 8. We review constitutional challenges to a sentence
de novo. United States v. Eaton, 260 F.3d 1232, 1236 (10th Cir. 2001).
The parties in this case appear to agree that the appropriate level of scrutiny to be
applied in resolving Angelos’s Equal Protection claim is the rational basis test, since
Angelos has not alleged a discriminatory intent on the part of Congress in enacting the
mandatory minimum sentencing scheme outlined in § 924(c). To pass muster under the
rational basis test, § 924(c) must “have a legitimate purpose,” and it must have been
“reasonable for the lawmakers to believe that use of the challenged classification would
promote that purpose.” Western & Southern Life Ins. Co. v. State Bd. of Equalization,
451 U.S. 648, 668 (1981).
Section 924(c) easily survives the rational basis test. As previously discussed, the
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“basic purpose” of § 924(c) was “to combat the ‘dangerous combination’ of ‘drugs and
guns.’” Muscarello, 524 U.S. at 126. Clearly, this purpose is legitimate, given the
recognized negative impact drugs and violence have upon society. Further, it was well
within reason for Congress to believe that use of the mandatory minimum sentencing
scheme outlined in § 924(c) would achieve this basic purpose by (a) incapacitating those
criminals willing to possess firearms during drug-trafficking crimes, and (b) deterring
other criminals from engaging in such dangerous conduct. See generally Chapman v.
United States, 500 U.S. 453, 467 (1991) (“Congress has the power to define criminal
punishments without giving the courts any sentencing discretion.”).
Alternative construction of § 924(c)
Lastly, Angelos contends the district court could have avoided any constitutional
problems by interpreting § 924(c) so as to treat his three marijuana distribution
convictions as a “grouping of related acts,” and in turn applying “only the 5-year
mandatory minimum sentence under 18 U.S.C. § 924(c)(2)(A)(i).” Aplt. Br. at 63.
Angelos’s contention, however, finds no support in the language of § 924(c). Section
924(c) provides enhanced penalties for “any person who, during and in relation to any . . .
drug trafficking crime . . . for which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm . . . .” 18 U.S.C. § 924(c)(1)(A). Section 924(c) defines the term
“drug trafficking crime” as “any felony punishable under the Controlled Substances Act .
. , the Controlled Substances Import and Export Act . . , or the Maritime Drug Law
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Enforcement Act . . . .” 18 U.S.C. § 924(c)(2). A defendant’s first conviction under §
924(c) carries a mandatory minimum five-year sentence that must run consecutively to
any other sentences. 18 U.S.C. § 924(c)(1)(A)(i). A second or subsequent conviction
under § 924(c) carries a mandatory minimum twenty-five year sentence that must run
consecutively to any other sentences. 18 U.S.C. § 924(c)(1)(C)(i). Here, it is undisputed
that Angelos was convicted of three separate violations of § 924(c), each occurring on a
different date, and each in connection with a separate “drug trafficking crime.” In light of
those three convictions, § 924(c) clearly mandated the imposition of a fifty-five year
sentence (five years for the first conviction, and twenty-five years for the second and third
convictions).
AFFIRMED.
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