week with my colleague judge lisa branch and she and i would like to welcome to our panel today judge stan baker who is a district court judge on the southern district of georgia  before that was a magistrate judge in that district before that was a litigator in private practice and before that if we could petey is to be believed he was a ranch hand in montana cost him at your peril but judge baker thank you so probably been before d us in the past you know the ground rules i would ask that you be mindful of your time it's short supplies dispense with any  niceties factual recitations procedural histories and just proceed directly to the most salient points of your argument we don't have a lighting system of course on the telephone but valerie our program deputy will let you know when you have two minutes remaining in your presentation when she tells you that your time has expired to feel free to finish your thought but the please do wrap it up if we have questions that take you beyond the appointed time but fine  very well fire away this is william bradford behalf of mr delgado may it please the court there were three points raised in the brief and i will cut straight to the chase on those points as we see them the st is the probable cause issue on the search warrant in this case i think the government based on their briefing is relying on a notion that it is reasonable to conclude that someone would take the fruits of a affidavit speaks in terms of seeking property that is connected to the purchase of a controlled substance it speaks in terms  of the object to the search warrant being used to could be used to commit in the future the crime of a possession of a controlled substance when we get to the warrant it doesn't speak in terms of items related to the purchase of a controlled substance but instead it says the items are related to the sale of a controlled substance and in this case at the time that he authored that affidavit thomas knew that the two packages the only two packages that we know of that contain contraband were being hail still by himself that they were not delivered to the residence that they were securely and his possession and so and i think that is also indicative of him statement to some degree i think the magistrate inherently has a problem serving their role correctly when they are given information which is if not falls or the question this this is this is judge newsome so i guess even before we get to good faith and then i guess i'm curious about probable cause itself and if you know the standard of probable cause and something like fair past experience call it a hunch why is that in the aggregate sufficient i don't think i understand that i think it's because that is the only thing that is for a lot on their end  and the court is saying many affidavits of officers and as well as counsel there's no confidential informant making a purchase in the past there's no word on the street related in the affidavit or a confidential providing information there's no observations about officers no one anywhere in the affidavit does it say that anyone ever saw any illegal activity or any contraband at the residence the only thing that it says is that we believe there may be documentation not even the fruits or instrumentalities but just mere evidence in the form of some documents to support the fact that he is the one that ordered the affidavit itself says you know it's my if the police executed to kevin's point to judge me some point about probable cause if the police had executed a controlled delivery instead would you still have an objection to probable cause i don't think that i would because i think at think in this case the nature of him ordering it off the internet is instructive because it opens up the possibility the order could have been done on another computer an office computer a cell phone or computer at his home and would not necessarily generate a paper documents it may be in a computer it may be stored on a cloud the the the ability to rely on the fact that there would be a piece of paper at his home i think is undermined by the nature of the purchase and it being and the internet cycle to begin with the other thing i'd point out is the homeland security officer hoffman and thomas both testified that they had participated in numerous types of mail delivery schemes and hofmann said that he had seen this address over fifty times but no one said they had ever seen mr delgado his name or address associated other than these two packages so there was no track record of him being on there right or or the address being on their radar and so there was a notion that maybe there were there were prior purchases that would be found some other paperwork from a prior purchase you strictly dealing with we're looking for a receipt which may or may not exist that would be at his home but we don't know if he made the purchase at the home we don't know if he's the one that made the purchase to begin with so i abandoned any challenge to the controlled substance conviction correct ok the other point i'd like to make is on the relevant conduct and senate saying this circuit is one of only a couple that has not definitively said that relevant conduct must be criminal conduct and i think that becomes a problem in this case the senate thing was driven in part by adding calculation to the offense level based on the weight of the drugs in the st package in count one count one was dismissed and i think it would the government had to show its sentencing in order for it to be relevant conduct that the conduct was criminal and in this case because at the time it was purchased and delivered it was merely an analog under fadden i think the government would have to show that mr delgado had knowledge don't see an argument in your breach in the sentence was substantively unreasonable on came this is what i would respond to tina's is a problem in a way but i think in this case when we look at how drastically the guideline numbers would change if if the objection has expired you can finish that i think is the drastic nature of the change in the guidelines it's one thing to say that we would have ended up at thirty six months if the numbers would only change slightly in this case depending on how the court holds it could change drastically based upon including the relevant conduct from the st count gray speaking on behalf of the united states of america may it please the court in this appeal the court must decide whether officers had a lawful basis to enter dog got his residence and whether his thirty six month sentence is reasonable this court  affirm turning st to the conviction it appears to now be clear that doug otto is not challenging the controlled substance conviction he's only challenging the searches to the firearm conviction the search as the district court found judge granade handled the sent the suppression motion and her analysis essentially proceeded in four steps one there were two lawful extended border searches of the packages nd officers obtained a search warrant for documents related to those shipments and had probable cause to obtain that warrant rd officers lawfully could search the safe for evidence of the documents and th the firearms silencers were in plain view once officers looked for documents inside the safe to be clear mr delgado has only challenge the nd step in that chain of analysis namely whether the officers had a lawful basis to be in the home pursuant to the search warrant the search warrant was both valid because it was supported by probable cause and alternatively the officers acted in good faith st turning to the probable cause standard as the court noted the standard for probable cause is deferential there has to be a fair probability that contraband or evidence of a crime will be inside the residence and the affidavit should connect the defendant to the residence and the residence to criminal activity the analysis is ultimately governed by a commonsense approach the search warrant affidavit met this standard because it linked the residents to criminal activity it linked delgado to the residence and it identified what officers expected to find based upon their training and experience with the two packages sent in rapid succession i think the affidavit indicated roughly a ten day gap i think the testimony at the suppression hearing was roughly five days but essentially a relatively quick succession it was reasonable for the officers to conclude that this was consistent with the source of supply and that they had a reasonable basis to believe that documents and information related to the shipments would be found inside the residence even if the court disagreed with that as we noted in our brief the good exception would have applied here because the officers conducted a careful discussion among themselves and the suppression transcript all to muttley reflects that they discussed the matter and decided that a controlled delivery would be difficult here given the nature of the house i believe there was a locked gate and other features that would have made it difficult to consummate the controlled delivery and therefore they had a reasonable discussion and ultimately conducted a reasonable search based on their reliance of the warrant as i believe judge baker noted there are four essential e exceptions to the good faith principle and i would note as a threshold matter that the good faith analysis is broad precisely because the expectation is that law enforcement officers who obtain warrants can reasonably rely on those warrants as they carry out their law enforcement duties and therefore the exceptions are relatively exactly exacting misleading information the magistrate wholly abandoned his judicial role it was so lacking in addition of probable cause that it rendered official belief in the existence of the warrant entirely unreasonable or the warrant was otherwise specially deficient none of those none of those premises are present in this case here the warrant certainly provided sufficient indicia of probable cause that an officer could reasonably believe that the that the war analysis i don't think it would matter here because i think the record suggests that deputy thomas acts in good faith throughout he provided he supports the war on the basis of his professional experience in these in these sorts of interdictions his expectations and what he expects to find and it's also important to note he conducted an independent investigation here as i read the essentially proceeds in three steps the st step addresses the extended border searches which revealed the contraband the nd was deputy thomas's own investigation into the residence to confirm both that number one it officers conduct was reasonable throughout and that ultimately is why the good faith exception should apply here his conviction should stand on that basis and unless the court has further questions on the warrant i would turn to the sentence ok here and let me ask you one question about the warrant so i'm looking at the face of the warrant right now is it any problem that it says toward the end of the warrant says it is packages were addressed to mr delgado that it is the war that leaves open the possibility of of some other person having been the person who ordered the drugs no your honor and here's why i think even if we accept that deputy thomas is hedging slightly in that this could be another person with a connection to the residence using delgado's name there is a strong connection of this residence to criminal activity namely the importation or shipment of multiple packages of controlled substances in rapid succession into the united states of america it certainly is true that not every single package addressed to every single death to every single residence would always give rise to a basis for a warrant but probable cause is ultimately a fact intensive inquiry that turns on the facts and circumstances of each case with a heavy dose of deference to the nature of the law enforcement investigation and the officers experience and what i read deputy thomas to be saying from a commonsense point of view is that the two packages are clearly connected to the residence they're both addressed there don't gado is clearly connected to the residence there are multiple items of evidence that suggests that he owns the residence and is the sole owner and that certainly don't gado or someone connected to him ordered these parcels and had them shipped there and then bill in his experience as a law enforcement officer there are commonly items related to the shipments and i would note also just as a as a brief clarification of course the affidavit is in the record twice in this case it's both as an exhibit to one of the defendants replies that they saw up subsequently amended document number twenty six it's also exhibit number defendant's exhibit number one from the suppression hearing the only distinction being from what i saw the document filed at the included a subsequent state court file stamp on it when it was submitted in the state court records and you live twenty seven tane will counsel you said multiple packages arriving from abroad in rapid want to i think that's a very close call and let let me explain why it may have still been announced here because there were very strong indicators that this defendant was the owner of this residence and the  shipping of the package was so clear i would suggest that you would possibly have to inject another ambiguity into here for example the the it's addressed to the residence but the name on the package does correspond with an owner or someone connected to the residence or that there's a name or an owner but it's connected to a residence in which they don't live and if you then injected those multiple ambiguities into the situation i think you would lack probable cause  i would say that you would have enough to nudge it across the line with one package here but it would be a very close call but with two in the circumstances in which they were shipped and given the nature of the investigation there certainly was a  this across across the line of there being a fair probability that evidence of the of this criminal activity would be found inside the residence turning to the sentencing issues district court indicates that it would have imposed the same sentence regardless then then the any error is assumed to be harmless now there is a suggestion that the variance here or would have been too severe but that simply isn't the case number one it's not even entirely clear what the variance would have been because the probation officer indicated in the sentencing record that if the firearm guideline had applied instead of the drug  then the ultimate sentencing range would have been essentially the same but moreover even if you accept at face value that delgado could have gotten the sentencing range down to the lowest possible range of the guidelines which would have been a zero to six months found inside the residence and simply that his conduct in having these products shipped from across international boundaries in the united states and having them handled by different employees who had to get this  these transactions from point a to point b put people at risk moreover even if the court looks past the king statement or found that the king statement was ambiguous the district court properly applied the senate thing analysis in this case st turning to the relevant conduct issue it's not entirely clear that the guidelines only intended to include criminal conduct both the definition of relevant conduct and the commentary applying that explained that it's broad the comments explained that the principles and limits of sentencing accountability under this guideline are not always the same as the principles and limits of criminal liability similarly the definition of controlled substances and analogues in the drug guideline in section two d one point one are similarly broad ultimately though the court doesn't have to reach that question that ultimate question because even if gives d o the benefit of the doubt the united states still made a mcfadden showing for purposes of sentencing even if the court applies the mcfadden standard of knowledge which essentially is twofold for purposes of analogue number one knowledge can be established through evidence that the thing that knew he was dealing with a controlled substance even if he did not know its identity or to the defendant knew the specific analogue he was dealing with even if he did not know its legal analysis is an analog the court still would have to adapt that standard to the relatively lower threshold that applies for purposes of for purposes of sentencing and even in mcfadden the court made clear  footnotes one in three i believe the knowledge that was being thank you so much the next fight in court made clear that knowledge is not just shown by direct evidence knowledge can be shown by circumstantial evidence and here there's a strong showing of circumstantial evidence regarding delgado's knowledge number one there were multiple shipments of these substances including one that he had knowledge as was a controlled substance and the district court found that that was consistent with attempting to establish a source of supply deputy thomas testified at the sentencing hearing that d'agata referred to the powders as research chemicals and it admitted that he took them to help him sleep and used him as a substitute for a prescribed drug which strongly suggest that he was aware of what these powders were don't got it also testified at the sentencing hearing and attempted to offer his own innocent explanation for these powders and the district court found that his testimony was not credible this testimony supports the range of sentences that i think would be appropriate even if the guidelines did not apply and then asked the parties and the defendant to provide guidance on where the senate should fall and the court ultimately sentenced at the low end of that range  i don't recall whether a statement of reasons was filed in the record or not but but i would suggest that doesn't ultimately render the sentence unreasonable and in addition the sentence would have been appropriate even under the guidelines i would start by saying i think that the question about the statement in the affidavit about some unknown person i think it does matter and i think what i have seen in other cases sometimes addresses are used as a mail drop something i that it would be there or that that's where it would ultimately stay or that there would be any any evidence of the contraband or delivery in this case there is absolutely no evidence that any contraband was ever delivered to mr delgado prior to this and i think that instructed by the fact that this address for the sender had been monitored for a very long time by homeland security they had and they had out of the identify of over fifty packages originating from that address but none of them apparently until time had been addressed to mr delgado so i think it's not fair to say that there was some track record of him receiving packages we're strictly dealing with two packages in the span of a couple of weeks packages that were not delivered  and i think that that makes a difference because you know they have the thomas is making an assumption that because it's addressed to his house that it would be him and that it would still be there and i don't think that those are as potent as they seem in it's looking for evidence of the sale there was never evidence of any sale ever there was absolutely no evidence anywhere in the case of a cycle thomas knew that thomas said that on the stand he said that he has his belief that d purchasing these for his own personal use so i think that those would count as a defect in the particularity of the warrant if nothing else that he should not be able to rely on frankly the wording of the of the grounds that i'm looking for information that would be used in the future to commit some crime and none of those are the case here what he is is attempting to do is to serve a search warrant for mere evidence legal documentation that otherwise does not show a crime but not merely as evidence of some other act that may be a crime and i think that's that's the difference and i don't think he can run a good faith because he is the author of the affidavit on cain i would say this that as the factors are a lot on by the district court or lemonade in some way or undercut and some like the more that happens the further we get from a level of confidence that the district court statement that the same sentence would be given regardless of the guidelines that starts to fall away and i think in this case if no if there were no search warrant if the court found that there to six months so the court would have to actually go up to thirty six months as opposed to varying downward and i think that's such a drastic change that it undercuts a statement that this is this is where we would have arrived at regardless of all these factors and the more the factors fade away the more the confidence that that would be the appropriate sentence fades away