Case: 17-10874   Date Filed: 02/16/2018   Page: 1 of 4


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10874
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:16-cr-00055-CEM-KRS-4



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                  versus

ZULEYKA JEANETTE COLON-RIVERA,
a.k.a. Mia,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (February 16, 2018)

Before WILLIAM PRYOR, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM:
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      Zuleyka Colon-Rivera appeals her convictions and sentence of 240 months

for one count of conspiring to distribute heroin and for three counts of distributing

and possessing with intent to distribute heroin. 21 U.S.C. § 841(b)(1)(A)(i),

(b)(1)(C); 18 U.S.C. § 2. Colon-Rivera challenges the denial of her motion to

suppress on the ground that law enforcement officers used the knock and talk

exception to the warrant requirement of the Fourth Amendment as a subterfuge for

an investigatory search. Colon-Rivera also challenges the substantive

reasonableness of her below-guidelines sentence. We affirm.

      The district court did not err by denying Colon-Rivera’s motion to suppress.

“The Fourth Amendment, which prohibits unreasonable searches and seizures by

the government, is not implicated by entry upon private land to knock on a

citizen’s door for legitimate police purposes unconnected with a search of the

premises.” United States v. Taylor, 

, 1204 (11th Cir. 2006). Agents

Mark Lee and Daniel Paul Tilton of the Drug Enforcement Agency testified that

they visited Colon-Rivera’s home to confirm that she had used the alias “Mia” to

sell heroin to an undercover officer who could not positively identify the seller.

      The district court was entitled to credit the agents’ explanation for their visit.

See United States v. Ramirez–Chilel, 

, 749 (11th Cir. 2002). Lee,

Tilton, and the undercover officer surveilled Colon-Rivera’s home from the street

until they saw her admit a visitor at 9:20 a.m. They followed the visitor to his

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vehicle where he surrendered 13 bags of heroin. See Kyllo v. United States, 

, 32 (2001) (“visual observation is no ‘search’ at all”). Lee and Tilton

knocked on Colon-Rivera’s door because they had yet to ascertain Mia’s identity

from coconspirators being apprehended by other federal agents. Colon-Rivera

agreed to speak to the agents in her kitchen, see Illinois v. Rodriguez, 

, 181 (1990), and allowed Tilton to “take a look” around her home to ensure

that she was the only occupant, see Maryland v. Buie, 

, 327 (1990).

Tilton then informed Colon-Rivera of her rights to silence and counsel, which she

waived. See United States v. Pineiro, 

, 1366–67 (11th Cir. 2004).

Colon-Rivera disavowed any involvement in the drug sale, but she incriminated

herself by uttering the undercover officer’s name as the officer entered the kitchen.

After the agents arrested Colon-Rivera, they were allowed to ask her to consent to

a search of her home. See United States v. Hidalgo, 

, 1571 (11th Cir.

1993). The agents conducted a valid knock and talk, which led to a consensual

search of Colon-Rivera’s home.

      The district court did not abuse its discretion when it sentenced Colon-

Rivera to concurrent sentences of 240 months for conspiring to distribute and for

distributing heroin. Colon-Rivera’s presentence investigation report provided an

advisory sentencing range of 262 to 327 months of imprisonment based on her role

in managing the trafficking organization for 38 weeks, her distribution of 19

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kilograms of heroin, and the seizure of two handguns, currency, and 200 bags of

heroin from her home. Colon-Rivera argued that there was an unwarranted

disparity between her sentencing range and her coconspirators’ sentences of 206

and 168 months, but Colon-Rivera, who went to trial and was found guilty of four

drug offenses, was not similarly situated to her coconspirators who pleaded guilty

to one drug offense. See United States v. Docampo, 

, 1101 (11th Cir.

2009). And the district court took into account that Colon-Rivera had been abused

as a child and varied downward to impose a sentence 22 months below her

applicable guideline range. Colon-Rivera argues that the district court punished her

for proceeding to trial as evidenced by its agreement with defense counsel that

Colon-Rivera exhibited “bizarre decision-making” by not pleading guilty. The

district court explained to Colon-Rivera that she was “not being penalized for not

accepting responsibility,” but that she could not receive the same leniency as her

coconspirators after she required the government to go to trial. Colon-Rivera’s

sentence, which is well below her statutory maximum penalty of imprisonment for

life, is reasonable. See United States v. Croteau, 

, 1310 (11th Cir.),

cert. denied, 

(2016).

      We AFFIRM Colon-Rivera’s convictions and sentence.




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