Case: 16-11783   Document: 00514363367       Page: 1   Date Filed: 02/27/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals

                                   No. 16-11783
                                                                          Fifth Circuit

                                                                        FILED
                                                                 February 27, 2018

UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
             Plaintiff–Appellee,

v.

JESSE HUERRA,

             Defendant–Appellant.




                Appeal from the United States District Court
                     for the Northern District of Texas


Before REAVLEY, SMITH, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      Jesse Huerra was convicted of distributing methamphetamine, using
firearms to further a drug-trafficking crime, and possessing firearms as a
convicted felon. Huerra has appealed and contends that: (1) there was no
probable cause to issue the warrant and therefore the district court should
have suppressed the evidence seized during a search of his home; (2) errors
during voir dire violated his Sixth Amendment right to a fair and impartial
jury; and (3) the district court erroneously applied the career-offender
enhancement to his Sentencing Guidelines range. We affirm.
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                                    No. 16-11783
                                           I
      Police in San Angelo, Texas, suspected Huerra of trafficking
methamphetamine and applied for a warrant to search his home. Primary
support for the warrant application came from San Angelo Detective Hank
Heathcock’s      five-page   affidavit,   which   recounted     Huerra’s    suspected
trafficking activities and included information from two confidential
informants (CIs) and two other police officers. A Texas state-court judge issued
a warrant to search Huerra’s house for methamphetamine and related items.
San Angelo police, including Heathcock, executed the warrant and found drug
paraphernalia,      three    firearms,    and     more   than     1,500    grams     of
methamphetamine.
      Relevant to this appeal, Huerra was charged with possession with intent
to distribute 500 grams or more of methamphetamine (Count 12), possession
of firearms in furtherance of a drug trafficking crime (Count 13), and
possession of firearms by a convicted felon (Count 14). Huerra pled not guilty
to all counts.
      Before trial, Huerra filed a motion to suppress the evidence seized during
the search. He argued that the affidavit so lacked indicia of probable cause
that the officers who executed the warrant could not in good faith have thought
that it was valid. The district court held a hearing and then denied the motion.
It ruled that the good-faith exception to the exclusionary rule applied and,
alternatively, that the supporting affidavit gave the state-court judge a
substantial basis to find probable cause.
      During voir dire, potential juror Jemal Floyd disclosed in open court that
he was a parole officer who was currently supervising Huerra. The district
court immediately excused Floyd. Prompted by defense counsel’s follow-up
questions, two other panel members expressed doubt about their ability to
remain impartial in light of Floyd’s statement. The district court then re-
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                                          No. 16-11783
explained to the venire the presumption of innocence and the burden of proof
and re-emphasized the jury’s proper role in the case, following which a third
panel member asserted that he too could be neither fair nor impartial. Defense
counsel moved to strike the panel, arguing that Floyd’s “outburst” had
“tainted” the venire. The district court overruled the objection but ultimately
excused the three panel members who questioned their ability to be impartial.
      The jury convicted Huerra on all counts. The district court ordered
preparation of a presentence report (PSR), and the probation officer filed a PSR
with two addenda. For Count 12, the PSR recommended life imprisonment
because Huerra had two prior “convictions for a felony drug offense,” triggering
a statutory “mandatory term of life imprisonment.” 1 For Count 13, the PSR
concluded that Huerra was a “career offender” under Section 4B1.1 of the
Federal Sentencing Guidelines and applied that enhancement to Huerra’s
Guidelines range. The PSR based the career-offender designation on three
prior Texas convictions: one for aggravated assault and two for possession with
intent to distribute a controlled substance. The career-offender enhancement
increased the Guidelines range for Count 13 from 295-months-to-life to
420-months-to-life in prison. For Count 14, the PSR recommended a 10-year
term of imprisonment because the Guidelines range exceeded the statutory
maximum of 10 years, with or without the career-offender enhancement.
      Huerra objected to the PSR, contending that the mandatory life sentence
as to Count 12 did not apply and that he did not qualify as a career offender
under the Guidelines. The probation officer declined to amend the PSR, and
the district court overruled Huerra’s objections and adopted the PSR. The
district court sentenced Huerra to three concurrent sentences: life




      1   See 21 U.S.C. § 841(b)(1)(A).
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                                       No. 16-11783
imprisonment on Count 12; 420 months of imprisonment on Count 13; and 120
months of imprisonment on Count 14. Huerra appealed.
                                              II
       Huerra contends that his motion to suppress the evidence found at his
home should have been granted because the search warrant was invalid. We
first consider whether the good-faith exception to the exclusionary rule applies.
We review de novo the district court’s determination that it did. 2
                                              A
       When law-enforcement officers seize evidence through objectively
reasonable reliance on a search warrant, the Fourth Amendment does not
require that courts suppress the evidence. 3 This principle is the good-faith
exception to the exclusionary rule. Typically, the fact that a magistrate has
issued the warrant can establish that officers executed the warrant in good
faith. 4 However, officers may not rely on a warrant that was supported only
by a “bare bones affidavit.” 5 We label an affidavit “bare bones” only “if it is so
deficient in demonstrating probable cause that it renders an officer’s belief in
its existence completely unreasonable.” 6 For example, affidavits “that merely
state that the affiant ‘has cause to suspect and does believe’ or ‘has received
reliable information from a credible person and does believe’ that contraband




       2  United States v. Cherna, 

, 406-07 (5th Cir. 1999) (citing United States
v. Satterwhite, 

, 321 (5th Cir. 1992)).
        3 

(citing United States v. Leon, 

, 922 (1984)).
        4 See United States v. Shugart, 

, 843-44 (5th Cir. 1997) (citing United

States v. Craig, 

, 821 (5th Cir. 1988)).
        5 United States v. Cisneros, 

, 1278 (5th Cir. 1997) (quoting United States

v. Alix, 

, 435 (5th Cir. 1996)).
        6 

980 F.2d at 320-21).



                                              4
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                                       No. 16-11783
is located on the premises” are bare bones. 7 We make this determination by
evaluating the totality of the circumstances. 8
       A reasonable officer could have relied on this warrant in good faith.
First, a magistrate issued the warrant, which normally establishes good faith.
Second, Officer Heathcock’s five-page affidavit was not bare bones. It included
tips from two reliable CIs that Huerra was involved in methamphetamine
distribution in San Angelo. The affidavit also described a San Angelo Police
Department investigation that had identified Huerra as the supplier for
several San Angelo methamphetamine dealers. Heathcock’s affidavit further
explained that, through “numerous investigative techniques,” New Braunfels
Police Officer Kristen Malish had determined that Huerra was distributing
methamphetamine from his home. Malish also gave “credible and reliable
information” that Huerra was storing a large amount of methamphetamine at
his home and had negotiated to sell four ounces of it to a San Angelo narcotics
dealer. Finally, Heathcock explained that San Angelo police had conducted a
four-month surveillance operation and confirmed that Huerra was distributing
methamphetamine from his home. The affidavit contained much more than
“wholly conclusory statements” that “lack the facts and circumstances from
which a magistrate can independently determine probable cause.” 9                        The
affidavit was not bare bones, and a reasonable officer could have relied on this
warrant in good faith.
       Huerra asserts that the CIs’ tips were stale and unreliable. Older tips
are not stale if “the affidavit clearly shows a long-standing, ongoing pattern of



       7 United States v. Pope, 

, 920 (5th Cir. 2006) (brackets and citations
omitted).
       8 United States v. Robinson, 

, 597 (5th Cir. 2014) (citing United States v.

Fisher, 

, 578 (5th Cir. 1994)).
       9 

.



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                                      No. 16-11783
criminal activity.” 10     This affidavit demonstrated Huerra’s longstanding,
ongoing pattern of methamphetamine distribution. The tips were not stale.
The affidavit also contained facts that support a conclusion that the CIs’ tips
were reliable. The CIs based their tips on personal knowledge, and both had
given reliable information before.          It is inconsequential that San Angelo
Detective Craig Thomason was the original source for the second CI’s tip
because “officers may submit warrant applications containing hearsay,
including, of course, information provided by other officers.” 11 It makes no
difference that the affidavit does not identify the source for the information
obtained during the San Angelo Police Department investigation.                         The
affidavit contains the common-sense inference—an inference that officers and
magistrates are free to make—that Heathcock’s information came either from
his direct participation in the investigation or from other officers who
participated in the same investigation, two presumptively reliable sources. 12
Finally, and contrary to Huerra’s contention, the information from Malish was
reliable. Officers “may submit warrant applications containing [police-officer]
hearsay.” 13 Heathcock’s statements about Malish’s investigative techniques
are presumptively reliable because he based them on his “observation of [a]
fellow officer[] participating in the same investigation.” 14 Malish’s information
was “particularly detailed,” which can also establish the tip was reliable. 15


       10 United States v. Craig, 

, 822 (5th Cir. 1988) (quoting United States v.
Webster, 

, 1056 (5th Cir. 1984)).
       11 Bennett v. City of Grand Prairie, Tex., 

, 407 (5th Cir. 1989) (citation

omitted).
       12 See United States v. May, 

, 536 (5th Cir. 1987) (rejecting the argument

that because an affidavit failed to identify the source of information uncovered during an
investigation the information was necessarily unreliable).
       13 

.
       14 

.
       15 United States v. Laury, 

, 1313 (5th Cir. 1993) (quoting United States

v. Jackson, 

, 349 (5th Cir. 1987)).

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                                       No. 16-11783
Furthermore, an officer could reasonably infer that Malish’s “numerous
investigative techniques” were a reliable source for her information. 16 Huerra
has identified nothing that undermines the affidavit’s reliability.
       The fact that a magistrate issued the search warrant coupled with the
apparent reliability of the supporting affidavit shows that a reasonable officer
could have relied on this warrant in good faith. The good-faith exception
applies, and the district court correctly denied Huerra’s motion to supress.
                                             B
       Even if the good-faith exception did not apply, the affidavit gave the
Texas district court a substantial basis for concluding that there was probable
cause to search Huerra’s home.
       Probable cause exists if “there is a fair probability that contraband or
evidence of a crime will be found in a particular place,” considering “all the
circumstances set forth in the affidavit.” 17               Mindful that the Fourth
Amendment’s requirements “are practical and not abstract,” a warrant’s
supporting affidavit “must be tested and interpreted by magistrates and courts
in a commonsense and realistic fashion.” 18 The “[t]echnical requirements of
elaborate specificity once exacted under common law pleadings have no proper
place in this area.” 19 Accordingly, we must give “great deference” to the state
district court’s determination that probable cause existed. 20
       Officers had a fair probability of finding contraband or evidence of a
crime at Huerra’s home. As discussed above, the affidavit provided ample




       16 See 

(concluding that a person is free to draw reasonable
inferences from a warrant affidavit).
       17 United States v. Wylie, 

, 974 (5th Cir. 1990) (quoting United States v.

Peden, 

, 518 (5th Cir. 1989)).
       18 

(quoting United States v. Ventresca, 

, 108 (1965)).
       19 

380 U.S. at 108).
       20 

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                                      No. 16-11783
evidence that Huerra was distributing methamphetamine from his home.
That evidence came from at least four reliable sources, spanned several
months, and told a consistent story.              The district court gave appropriate
deference to the state district court’s determination and correctly concluded
that the state district court had a substantial basis for issuing the search
warrant.
      Because the good-faith exception applies or alternatively because there
was a substantial basis for issuing the warrant, the district court did not err
in denying Huerra’s motion to supress.
                                            III
      Huerra contends that his Sixth Amendment right to a fair and impartial
jury was violated because the district court refused to dismiss the panel of
potential jurors after one of them (Floyd) revealed that he was Huerra’s parole
officer. The Sixth Amendment guarantees a fair and impartial jury. 21 A jury
is unfair and partial if the jurors “had such fixed opinions that they could not
judge impartially the guilt of the defendant.” 22 But “jurors need not . . . be
totally ignorant of the facts and issues involved.” 23 Jurors are considered fair
and impartial so long as they “can lay aside [an] impression or opinion and
render a verdict based on the evidence presented in court.” 24
      The district court’s actions before and after Floyd’s disclosure ensured
that Huerra’s jurors would be fair and impartial. As voir dire began, the
district court told the panel to presume Huerra’s innocence. After Floyd offered
that he was Huerra’s parole officer, the district court immediately excused him.
Subsequently, the district court gave the panel members an opportunity to



      21 See 

.
      22 Patton v. Yount, 

, 1035 (1984).
      23 Murphy v. Florida, 

, 799-800 (1975).
      24 

(quoting Irvin v. Dowd, 

, 723 (1961)).

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                                  No. 16-11783
disclose whether, for any reason, they should not serve on the jury. The district
court allowed defense counsel to ask the panel members whether Floyd’s
statement might affect their ability to be fair and impartial. In response, two
panel members told the court that Floyd’s statement might affect them,
prompting the district court to remind the panel about the presumption of
innocence, the burden of proof, and the jury’s proper role in the case. Then the
court asked these two panel members whether Floyd’s statement might
prevent them from being fair and impartial, and they said that it would. The
district court then permitted defense counsel to ask whether anyone else felt
the same, and a third panel member also said that Floyd’s statement might
have an impact. Defense counsel asked this question again, but no other panel
members came forward.       At the conclusion of voir dire, the district court
excused all three panel members who said they were influenced by Floyd’s
revelation. These combined measures were adequate to protect Huerra’s right
to a fair and impartial jury.
      There is no evidence that the district court’s actions discouraged the
panel members from disclosing whether Floyd’s statement had affected them.
To the contrary, the panel’s behavior after the statement belies any concerns
that they were too intimidated to disclose potential biases. Immediately after
the district court reminded the panel about the presumption of innocence and
asked panel members to come forward if Floyd’s statement had affected them,
a third panel member spoke up and explained that Floyd’s disclosure had
biased that panel member against Huerra.             Later, other panel members
casually offered their opinions on drug enforcement, laws against felon gun
ownership, and government regulation of private gun ownership. This panel
was not hesitant to disclose its potential biases.




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                                      No. 16-11783
      The facts of this case are unlike those in United States v. Rowe, 25 when
we ordered a new trial because of a district court’s statements during voir
dire. 26 A prospective juror in that case had told the court that she could not be
fair and impartial. 27 The district court responded by accusing her of “refusing
to put aside [her] personal opinions” and giving the “kind of answer which is
clearly made up for the occasion [and] is not really great.” 28 The judge said
that he would place her on “February, March and April’s panel to come back”
and threatened that she would “be coming back again, and again, and again”
until she could “figure out how to put aside [her] personal opinions and do [her]
duty to [her] country as a citizen.” 29 To a second panel member who made a
similar disclosure, the judge said that it was “appalling” to “presume that
people were guilty [just] because they were standing here charged with a
crime.” 30 The judge threatened to place this potential juror “back on the jury
panel for February, March and April” and suggested that she “take [sic] some
remedial constitutional inquiries in the meantime.” 31 The judge concluded
that it was “hard for [him] to believe somebody who stands up and says that
they believe that because someone’s sitting here that they’re guilty already.” 32
      The facts before us do not resemble those in Rowe. The district court in
the present case took adequate and appropriate steps to ensure Huerra’s right
to a fair and impartial jury.




      25 

(5th Cir. 1997).
      26 Id at 1230.
      27 

      28 

      30 

      32 

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                                     No. 16-11783
                                           IV
      The district judge did not commit reversible error in concluding that
Huerra was a career offender within the meaning of the Guidelines. Huerra
failed to preserve this issue, and our review is for plain error. He has not
satisfied the third and fourth plain-error requirements.
      Typically, we “review[] the district court’s application of the Sentencing
Guidelines de novo and its findings of fact for clear error.” 33 But we subject to
plain-error review arguments that are raised for the first time on appeal. 34 To
preserve an issue for appeal, the objection below “must fully apprise the trial
judge of the grounds for the objection so that evidence can be taken and
argument received on the issue.” 35 But Huerra’s conclusory objection merely
claimed that he lacked “the requisite number” of past felony convictions for the
career-offender enhancement. He did not identify which felony convictions the
district court should ignore or explain why it should ignore them. Nor did he
elaborate on these objections during the sentencing hearing. Huerra did not
fully apprise the district court of the grounds for his objection. We therefore
review this issue only for plain error.
      To obtain relief under Federal Rule of Civil Procedure 52(b)—which
embodies plain-error review—an appellant must show four requirements. 36
“First, there must be an error or defect” that the appellant has not
“affirmatively waived.” 37 “Second, the legal error must be clear or obvious,
rather than subject to reasonable dispute. Third, the error must have affected




      33 United States v. Medina-Anicacio, 

, 643 (5th Cir. 2003).
      34 

States v. Musa, 

, 924 n.5 (5th Cir. 1995).
      36 See Puckett v. United States, 

, 135 (2009).
      37 

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                                       No. 16-11783
the appellant’s substantial rights.” 38 Fourth and finally, even if the first three
requirements are present, an appellate court may remedy the error only if it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” 39 Of course, “[m]eeting all four prongs is difficult, ‘as it should
be.’” 40
           As the Government concedes, Huerra has satisfied the first two
plain-error requirements. A person with “at least two prior felony convictions
of either a crime of violence or a controlled substance offense” may be
considered a career offender under the Federal Sentencing Guidelines. 41 Two
of Huerra’s three prior felony convictions were for violating Texas Health &
Safety Code § 481.112. But this court has held that convictions under that
Texas statute are not predicate offenses for purposes of the career-offender
enhancement. 42 Without those convictions, Huerra has only one prior felony
conviction, so he is not a career offender under the Guidelines. It was clear
legal error for the district court to apply that enhancement.
           The third plain-error requirement is absent, however, because the
sentencing error did not affect Huerra’s substantial rights.                     First, the
erroneous career-offender enhancement did not change Huerra’s Federal
Bureau of Prisons (BOP) security level. The BOP bases an inmate’s security
level in part on a Criminal History Score. 43                  But the career-offender


          

           38

          

States v. Olano, 

, 736 (1993)) (brackets omitted).
           39
       40 

States v. Dominguez Benitez, 

, 83 n.9 (2004)).
       41 UNITED STATES SENTENCING GUIDELINES MANUAL § 4B1.1 (2016).
       42 See United States v. Hinkle, 

, 576-77 (5th Cir. 2016) (holding that past

convictions under Texas Health & Safety Code § 481.112 cannot trigger the career-offender
enhancement); see also United States v. Tanksley, 

, 352 (5th Cir. 2017) (similar),
supplemented by, 

(5th Cir.).
       43 See U.S. DEP’T OF JUSTICE FEDERAL BUREAU OF PRISONS, PROGRAM STATEMENT:

INMATE SECURITY DESIGNATION AND CUSTODY CLASSIFICATION, No. P5100.08, Chapter 4,
Pages 8, 16 (Sept. 12, 2006), https://www.bop.gov/policy/progstat/5100_008.pdf.

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                                       No. 16-11783
enhancement does not affect the Criminal History Score 44 and therefore did
not affect Huerra’s security level. Second, since the error implicates only the
shortest of three concurrent sentences, it did not affect Huerra’s substantial
rights. The error does not affect the sentences for Counts 12 and 14: Huerra
received a mandatory life sentence for Count 12, and the Guidelines sentence
for Count 14 would have exceeded the 10-year statutory maximum even
without the career-offender enhancement. The only sentence that the error
arguably affected was the sentence for Count 13. But that 420-month sentence
is the shortest of the three concurrent sentences. When an error affects only
the shorter of several concurrent sentences, a defendant’s “failure to challenge
his longer . . . sentence renders his challenge to his concurrent . . . [shorter]
sentence irrelevant” under plain-error review since the defendant cannot show
that the error affects his substantial rights. 45 Unable to show that the error
affects his substantial rights, Huerra has failed to establish the third
plain-error requirement.
       The fourth plain-error requirement is also absent. First, a sentencing
error that affects only the shorter of two or more concurrent sentences does not
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. 46    Moreover, Huerra’s concurrent life sentence for Count 12
means that he “can show no meaningful benefit . . . from vacating this [shorter]
sentence” on Count 13. 47 Without that showing, we decline to exercise our
discretion to grant plain-error relief and thus avoid “any unwarranted


       44  See 

4, Page 8.
       45  United States v. Meshack, 

, 577 (5th Cir. 2000), amended per curiam
on reh’g in part, 

(5th Cir. 2001), overruled on other grounds, United States v.
Cotton, 

(2002) (citing United States v. Phillips, 

, 351 n.5 (5th Cir.
2000)).
        46 See 

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                                         No. 16-11783
extension of the authority granted by Rule 52(b) [that] would disturb the
careful balance it strikes between judicial efficiency and the redress of
injustice.” 48
                                     *        *         *
       For these reasons, we AFFIRM the judgment of the district court.




        Puckett v. United States, 

, 135 (2009) (original internal quotation marks
       48

and brackets omitted).
                                             14