SELYA, Circuit Judge.
Defendant-appellant Christopher Coombs strives to persuade us that the district court erred both in denying his multiple motions to suppress incriminating evidence and in fashioning his sentence. We are not convinced and, therefore, affirm.
We rehearse the facts as supportably found by the district court following an omnibus hearing on the appellant's several motions to suppress.
In the wake of his 2009 conviction on drug-trafficking charges, the appellant was sentenced to a fifteen-month term of immurement to be followed by a five-year term of supervised release. He served his prison sentence but, during his final six months under supervision, he again found himself on the wrong side of the law.
In October of 2014, Customs and Border Protection (CBP) agents intercepted a package at John F. Kennedy International Airport in New York. An air waybill — a document completed by the sender that includes the package's origin, destination, and a description of its contents — accompanied the package. The air waybill indicated that the package was from "Marry" in Shanghai and was to be delivered at the appellant's residence in Westbrook, Maine. The contents were described as "[p]olycarbonate."
Inspection of the contents revealed an amber-colored crystal (a rock-like substance). The agents conducted a chemical field test and received a reading that was positive for methylenedioxymethamphetamine (MDMA), commonly known as ecstasy. A second analysis, conducted in Portland, Maine, at a Department of Homeland Security (DHS) facility, detected alpha-pyrrolidinopentiophenone (alpha-PVP), a type of synthetic cathinone. Synthetic cathinones are colloquially known as bath salts.
On October 31, DHS agents and local police, in conjunction with the U.S. Postal Service, executed a controlled delivery of the package (with the contents safely removed) to the appellant at his Westbrook address.
While the controlled delivery was underway, the officers sought an anticipatory
As matters turned out, the appellant accepted the parcel while standing outside the building, and the officers promptly took him to the ground. He was arrested on the spot and never brought the package into his home. The officers described the appellant's manner at the time of the detention as "nerved up" but cooperative. By the time that news of the warrant arrived at the scene, the appellant already had consented to a search of his residence and had signed a form to that effect.
Following the appellant's arrest, officers transported him to the police station and read him his
During a search of the appellant's residence, officers seized a computer, a tablet, and five cell phones. Thereafter, the appellant — still in custody — exchanged telephone calls with his wife. A standard recording at the beginning of each call warned him that the conversations would be recorded and monitored. When his wife noted that the authorities had taken his electronic gear, he asked her to delete receipts from two e-mail accounts and supplied her with the passwords. In a subsequent conversation, the appellant sought to confirm that his wife had not only deleted the receipts but also had emptied the trash folders to "make sure they were deleted securely."
In due course, the government sought and received warrants authorizing the search of the five cell phones found at the appellant's residence and the two e-mail accounts that he had mentioned to his wife. The search of the e-mails disclosed several exchanges between the appellant and overseas pharmaceutical companies, in which the appellant, in his own words, solicited "apvp (or similar products)." In addition, he made inquiries as to pricing and quantities and placed several orders.
Subsequent to the issuance of the last of the warrants, the seized amber-colored crystal was subjected to more sophisticated laboratory testing. This testing was conducted at a Drug Enforcement Administration (DEA) laboratory. It revealed, for the first time, that the substance was alpha-pyrrolidinohexanophenone (alpha-PHP) rather than alpha-PVP. Although these substances were (and are) both regulated as controlled substances — illegal bath salts — the two have different chemical compositions.
At the time of the appellant's offensive conduct, alpha-PVP was regulated pursuant to the Attorney General's authority to designate controlled substances temporarily, as needed, in order to "avoid imminent hazards to public safety."
On January 15, 2015, a federal grand jury sitting in the District of Maine handed up a two-count indictment against the appellant. Count one charged possession with intent to distribute alpha-PHP, a schedule I controlled substance analogue.
The appellant maintained his innocence and filed five separate motions to suppress. Following an omnibus hearing, the district court — ruling in an electronic order — deemed the first suppression motion moot
Without objection, the district court calculated the appellant's guideline sentencing range as fifty-seven to seventy-one months. The court then sentenced the appellant to a concurrent five-year incarcerative term on each count of conviction, to be followed by five years of supervision. At the same time, the court dealt with the appellant's admitted violation of his earlier supervised release and imposed a 366-day incarcerative sentence for that violation. The court decreed that the revocation-of-supervised-release sentence would run consecutively to the concurrent sentences imposed with respect to the offenses of conviction.
The appellant moved to modify the judgment. Pertinently, he sought to reduce his new term of supervision from five years to three years. The court granted this entreaty in part, reducing the supervised release term for count two to three years (the statutory maximum for that count,
In this venue, the appellant challenges the denial of four of his motions to suppress. We address the first two of these motions together and then examine the other two motions separately. Thereafter, we scrutinize the appellant's claims of sentencing error.
We review a district court's findings of fact on a motion to suppress for clear error.
A finding of probable cause does not demand proof beyond a reasonable doubt.
A criminal defendant may impugn the veracity of an affidavit supporting a search warrant if he can show that a false statement, necessary to a finding of probable cause, was included in the affidavit "knowingly and intentionally, or with reckless disregard for the truth."
In this instance, the challenged affidavits were signed by DHS Special Agent Gary Moulton. Moulton submitted two affidavits: one in support of the search of the five cell phones and the other in support of the search of the two e-mail accounts. Each of Moulton's affidavits incorporated an earlier affidavit from a member of the Westbrook Police Department, Augustin Rodriguez, originally prepared in support of the application for the anticipatory search warrant.
Hindsight is always 20/20 and, when viewed in retrospect, the affidavits at some points mis-described the contents of the package. As matters turned out, the package did not contain alpha-PVP but alpha-PHP. It is apodictic, though, that "[e]ven if a warrant issues upon an insufficient showing of probable cause, suppression may be inappropriate if the officers involved have exhibited objective good faith."
Here, the government's first line of defense is that there was no false statement at all: read together, the affidavits simply stated that the amber-colored crystal had tested positive for MDMA and alpha-PVP (which was in fact true). But this is only part of the story: the affidavits referred, several times, to the substance itself as alpha-PVP.
To be sure, the affidavits did misstate a fact. Even so, that the affidavits, in hindsight, misstated a fact does not resolve the matter. Rodriguez signed his affidavit on October 31, 2014. Moulton signed the first of his two affidavits on November 6, 2014. He signed the second affidavit on November 14, 2014. But the amber-colored crystal was not accepted for testing at the DEA laboratory until November 14, and the results of that testing were not made available to the DHS until December 9 (long after all of the search warrants had been issued).
There is not a shred of evidence that, when the affidavits were executed and submitted, either affiant knew (or for that matter had any reason to believe) that the amber-colored crystal was not alpha-PVP. The affiants' mistaken assertion was made neither knowingly nor with reckless disregard for the truth. Quite the opposite: the affiants relied on the only laboratory test
When all is said and done, the record in this case contains nothing that shows that either affiant had the slightest reason to entertain serious doubts about the accuracy of the available test results. For aught that appears, the affiants incorporated into their affidavits the best information known to them. Law enforcement officers who prepare warrant affidavits are expected to use care, but they are not expected to be clairvoyant. That a small portion of the information contained in these affidavits ultimately proved to be mistaken does not vitiate the affiants' good faith.
We could stop here but, for the sake of completeness, we proceed to consider whether the affidavits, even without the statements incorrectly referring to the amber-colored crystal as alpha-PVP, would still demonstrate probable cause. We think that they do.
To begin, the initial laboratory test results would not need to be edited out of the Rodriguez affidavit. Regardless of what the substance eventually proved to be, it is not false to say that the initial tests returned positive readings for MDMA and alpha-PVP. Thus, the Rodriguez affidavit, incorporated in the later Moulton affidavits, would still be read to assert, truthfully, that the contents of the package addressed to the appellant tested positive for controlled substances.
Moreover, Moulton's affidavits would continue to state, truthfully, that the appellant accepted delivery of the package and that he asked his wife to delete receipts from his e-mail accounts after learning that the police had seized his computer. Given these and other statements, we are satisfied that the affidavits, stripped of the false assertion, would still contain enough true facts to establish a fair probability that evidence of a crime would be found through a search of the appellant's cell phones and e-mail accounts.
That ends this aspect of the matter. In the circumstances of this case, the officers' good faith is manifest. They gained no advantage by describing the amber-colored crystal as alpha-PVP rather than alpha-PHP. Both were regulated as controlled substances and, thus, we conclude that the officers reasonably believed that they were dealing with an illicit drug and identified that drug in a way that, though mistaken, did not materially mislead the magistrate. Put another way, had the affidavits referred exclusively to alpha-PHP, their force would not have been diminished. To cinch the matter, the affidavits, stripped of the false assertion, still make out a robust showing of probable cause. It follows that no error, clear or otherwise, tainted the district court's order denying the appellant's second and third motions to suppress.
In the case at hand, the appellant acknowledges that he read and signed a consent form authorizing the search of his residence. That form, among other things, specifically advised him that he had a right not to consent to the search. He nonetheless maintains that his consent was not voluntarily given. He says that he had just been thrown to the ground and arrested, and suggests that he was intimidated and under intense stress. The record, however, undermines this suggestion: Moulton (whose testimony was credited by the district court) stated that more than twenty minutes elapsed between the appellant's arrest and his consent to the search. The appellant appeared cooperative and lucid throughout, even if a bit "nerved up." What is more, no officer's weapon was drawn and no threats were uttered.
The appellant also argues that his history of mental illness — anxiety, depression, and bipolar disorder — vitiated his consent. But the record contains nothing in the way of persuasive evidence that might show a nexus between the appellant's psychiatric history and the giving of consent. Importantly, the officers who testified observed no evidence of mental incapacity during their interactions with the appellant. Overall, he seemed calm, albeit nervous, and was "able to carry on a conversation."
In the last analysis, the voluntariness of the appellant's consent presented an issue of fact for the district court. We have said before that "[w]here the evidence supports two plausible but conflicting inferences, the factfinder's choice between them cannot be clearly erroneous."
The appellant's argument gains no headway because neither a signed waiver of
This brings us to the appellant's claims of sentencing error. As a general matter, we review such claims for abuse of discretion.
Here, the appellant musters both procedural and substantive claims. First, he assigns error to the district court's decision to run his 366-day sentence for the violation of his earlier supervised release term consecutively to his concurrent five-year sentences for the offenses of conviction. Second, he insists that those concurrent five-year sentences are substantively unreasonable. We address these claims separately.
A decision as to whether to run sentences concurrently or consecutively normally rests in the sentencing court's informed discretion.
The appellant's challenge runs headlong into the abuse-of-discretion standard of review. Given the district court's concerns about the appellant's cavalier attitude toward the law,
Relatedly, the appellant argues that the imposition of consecutive sentences in this case amounts to double-counting. In his view, he is being punished twice for the same act because the conduct underlying the counts of conviction forms the basis for the revocation of his supervised release term. This argument, too, lacks force.
Where, as here, conduct committed by a person while on supervised release transgresses the criminal law as well as the conditions of supervision, there is no legal impediment in sentencing the defendant both as a criminal and as a supervised release violator.
By the same token, there is no legal impediment to imposing the sentences to run consecutively.
USSG § 7B1.3(f).
With respect to a claim that a sentence is substantively unreasonable, the key inquiry is whether the sentencing court has articulated a plausible rationale and reached a defensible result.
The appellant catalogues a litany of factors that, in his view, justify greater leniency. As a youth, he endured sexual and physical abuse, which led to homelessness when his mistreatment proved too much. He has experienced a number of health-related problems, including bipolar disorder, depression, anxiety, chronic back pain, and hepatitis C. In addition, his family will suffer from his absence: he is a father figure to his three stepchildren (ages nine to twelve at the time of sentencing), and his wife suffers from fibromyalgia.
We do not gainsay that this litany of mitigating factors weighs in favor of leniency. The district court, though, took pains to note that it gave these factors due weight. It then mentioned several countervailing considerations and — having constructed a balance — set forth cogent reasons for nonetheless imposing a mid-range sentence. For example, the court — which had sentenced the appellant for his original drug-trafficking offenses — expressed concern that his relatively short prison term for his prior drug convictions already had taken the mitigating factors into consideration. The court was entitled to weigh in the balance the fact that it had given the appellant "a significant break" in his earlier case. Following that lenient treatment, the appellant had neither turned his life around nor learned to "obey the law." Moreover, the court worried that the appellant continued to have a "mentality that he [could] get away with something." The court expressed particular skepticism about the appellant's claim that he did not know that alpha-PHP was illegal.
The short of it is that the district court weighed all of the relevant sentencing factors,
The district court also achieved a defensible result. On this issue, the fact that the concurrent five-year sentences were within the guideline range is deserving of some weight.
We need go no further. For the reasons elucidated above, the judgment is