United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-1355

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United States of America,

Appellee,

v.

Elias Zavala, also known as

Shannon Estrada, also known as

Francisco Alvarez-Estrada,

 Appellant.

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Appeal from the United States

District Court for the

District of Nebraska.

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Submitted: September 13, 2005 

 Filed: October 31, 2005

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Before RILEY, FAGG, and GRUENDER, Circuit Judges. 

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GRUENDER, Circuit Judge.

Elias Zavala (“Zavala”) was convicted of one count of conspiracy to distribute

50 grams or more of a substance containing methamphetamine in violation of 21

U.S.C. § 846 and two counts of possession with intent to distribute 50 grams or more

of a substance containing methamphetamine in violation of 21 U.S.C. § 841. The

district court imposed concurrent sentences of 360 months’ imprisonment for the

conspiracy count and 240 months’ imprisonment for each possession with intent to

distribute count. On appeal, Zavala argues that the district court erred in denying his
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motion to suppress evidence and that he should be resentenced in light of United

States v. Booker, 125 S. Ct. 738 (2005). For the reasons discussed below, we affirm

Zavala’s conviction but vacate his sentence and remand to the district court for

resentencing.

I. BACKGROUND

On May 15, 2001, Omaha police officers executed a search warrant at the

residence of Pamela Maldonado. During the search, Maldonado identified a bedroom

as the one she shared with her boyfriend. From that bedroom, officers seized over 100

grams of methamphetamine, $980 in cash, a functional scale and a Kansas

identification card (“ID card”) in the name of “Shannon Estrada.” Maldonado

admitted to the officers that Zavala was the man pictured on the ID card and that she

and Zavala had been selling methamphetamine. One officer, Sergeant Mark Langan

(“Sgt. Langan”), kept the ID card in his briefcase that summer but did not actively

search for Zavala.

On September 21, 2001, Omaha police officers, including Sgt. Langan,

executed an unrelated search warrant at the residence of Pepsi Million. The officers

were unaware of any connection between Zavala and Million at the time of the search.

During the search, Zavala arrived at Million’s residence. He identified himself to two

uniformed officers outside the residence as “Francisco Alvarez.” The officers advised

Sgt. Langan by radio of Zavala’s arrival. When Sgt. Langan went outside, he

immediately recognized Zavala as the person pictured on the ID card he still had in

his briefcase. As a result, Sgt. Langan realized that Zavala had given the officers a

false name. Officers arrested Zavala and searched him, finding 0.25 ounces of

methamphetamine and six nine-millimeter bullets in his pants pocket.

Zavala was indicted for one count of conspiracy to distribute methamphetamine

and two counts of possession with intent to distribute methamphetamine. Before trial,
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he filed a motion to suppress the bullets and methamphetamine seized from his person

and to suppress statements he made during the incident.

 At the suppression hearing before a magistrate judge, Zavala and Sgt. Langan

offered conflicting testimony. Zavala testified that, as soon as he entered Million’s

yard, the two uniformed officers drew their pistols, pointed them at him, and patted

him down. He further testified that the officers never told him he was under arrest and

searched him without asking for consent. He also testified that he does not speak

English fluently and that he told the officers he was under the influence of alcohol.

In contrast, Sgt. Langan testifed that the two uniformed officers did not draw their

weapons or pat down Zavala and that, although Zavala appeared to have been drinking

alcohol, he responded to the officers appropriately and coherently in English

throughout the incident and, specifically, when he consented to be searched.

Following this hearing, the magistrate judge issued a report and

recommendation to deny the motion to suppress. The magistrate judge found that the

police officers had probable cause to arrest Zavala based on the search of

Maldonado’s residence or on Zavala’s false identification of himself to the officers.

The magistrate judge also found Sgt. Langan’s testimony more credible than Zavala’s

testimony and found that Zavala consented to the search or, alternatively, that the

search was proper as incident to a lawful arrest. Zavala did not object to the report

and recommendation, and the district court adopted it in its entirety and denied

Zavala’s motion.

A jury subsequently convicted Zavala on all three counts. The presentence

investigation report recommended numerous sentencing enhancements. Zavala filed

written objections to each enhancement and to the calculated drug quantity. The

district court overruled each objection. At his sentencing hearing, the district court

imposed concurrent sentences of 360 months’ imprisonment for the conspiracy count

and 240 months’ imprisonment for each count of possession with intent to distribute.
1

 On appeal, Zavala has abandoned the argument that his statements should

have been suppressed. Although he mentions this issue in his brief, Zavala fails to

provide any reasons or arguments for suppressing his statements. See Fed. R. App.

P. 28(a)(9)(A) (requiring appellants’ briefs to contain arguments “with citations to the

authorities and parts of the record on which the appellant relies.”); cf. United States

v. Paz, 411 F.3d 906, 911 n.4 (8th Cir. 2005) (holding that defendant abandoned an

argument on appeal by making only fleeting references to it in the context of a

different issue in his brief).

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II. DISCUSSION

A. Motion to Suppress

Zavala argues that the district court erred in denying his pretrial motion to

suppress the bullets and methamphetamine seized from him.1

 In particular, Zavala

disputes the district court’s holdings that the police officers had probable cause to

arrest him and that he voluntarily consented to be searched. Because Zavala failed to

object to the magistrate judge’s report and recommendation, we review the district

court’s factual findings for plain error. See Fed. R. Crim. P. 52(b); United States v.

Looking, 156 F.3d 803, 809 (8th Cir. 1998). We review de novo the legal conclusions

based on those facts. Looking, 156 F.3d at 809.

We find no error, plain or otherwise, in the district court’s factual findings.

Furthermore, we agree with the district court that the officers had probable cause to

arrest Zavala and that Zavala voluntarily consented to be searched.

First, we agree with the district court that the officers had probable cause to

arrest Zavala based on information they learned during the search of Maldonado’s

residence. “Probable cause to conduct a warrantless arrest exists when at the moment
2

 We also agree with the district court that Sgt. Langan’s familiarity with

Zavala’s ID card created probable cause to arrest Zavala for providing a false name

to police officers in violation of Nebraska law. See Neb. Rev. Stat. § 28-907

(prohibiting false reporting to police officers).

3

 We also agree with the district court that the search of Zavala was proper as

incident to a lawful arrest. See United States v. Smith, 422 F.3d 715, 726 (8th Cir.

2005) (citing United States v. Edwards, 415 U.S. 800, 802-03 (1974), for the

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of arrest police have knowledge of facts and circumstances grounded in reasonably

trustworthy information sufficient to warrant a belief by a prudent person that an

offense has been or is being committed by the person to be arrested.” United States

v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001) (citing Beck v. Ohio, 379 U.S. 89, 91

(1964)). The evidence of methamphetamine distribution seized during the search of

Maldonado’s residence, coupled with her incriminating statements against Zavala,

established probable cause to arrest Zavala. Cf. United States v. Marchena-Borjas,

209 F.3d 698, 700 (8th Cir. 2000) (per curiam) (finding probable cause for a

methamphetamine-related arrest based on descriptive information from a confidential

informant and corroborating evidence from a police investigation).2

Second, we agree with the district court that the officers properly searched

Zavala based on his voluntary consent. It was not error for the magistrate judge to

resolve credibility issues in favor of Sgt. Langan. See United States v. Ziesman, 409

F.3d 941, 955 (8th Cir. 2005) (“Witness credibility is an issue for the sentencing judge

that is virtually unreviewable on appeal.”). Accordingly, it was not error for the

district court to find that the officers did not draw their guns on Zavala, that the

officers asked Zavala for consent to be searched, and that Zavala’s English-language

skills were sufficient to allow him to consent in English. Furthermore, it was not

error to find that, although Zavala appeared to have been drinking alcohol, his

appropriate and coherent responses to the officers’ questions demonstrated he was not

intoxicated. Given these facts, we hold that Zavala voluntarily consented to be

searched.3

 Therefore, the district court properly denied Zavala’s motion to suppress.
proposition that a search incidental to an arrest is an exception to the Fourth

Amendment warrant requirement).

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B. Sentencing

Zavala argues that he should be resentenced in light of Booker, 125 S. Ct. at

756. We agree.

Zavala was sentenced in violation of Booker and the Sixth Amendment because

he was sentenced under the then-mandatory United States Sentencing Guidelines and

his guidelines sentence was enhanced based on judge-found facts that were not tried

to a jury or admitted by Zavala. See United States v. Mendoza-Mesa, 421 F.3d 671,

672 (8th Cir. 2005). Zavala filed timely objections to these enhancements and

sufficiently raised Apprendi before the district court. Therefore, we review his

sentence for harmless error. United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)

(en banc), cert. denied, No. 05-5547 (U.S. Oct. 3, 2005). Because this error is of

constitutional magnitude, the Government bears the burden of proving harmless error

beyond a reasonable doubt. Mendoza-Mesa, 421 F.3d at 672 (citing Chapman v.

California, 386 U.S. 18, 24 (1967)).

The Government did not meet its burden of proving harmless error in this case.

The Government suggests that the Booker error was harmless because the district

court denied Zavala’s motion to depart downward. However, merely declining to

grant a downward departure motion “does not speak to whether the district court

would have imposed the same sentence under an advisory guidelines system or would

have otherwise varied from the applicable Guidelines range based on factors set forth

in 18 U.S.C. § 3553(a).” See Mendoza-Mesa, 421 F.3d at 673. Zavala was sentenced

at the bottom of the applicable guidelines range, and the district court made no

suggestion that it would have imposed the same sentence under an advisory guidelines

regime. See, e.g., United States v. Storer, 413 F.3d 918, 923 (8th Cir. 2005) (holding
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Booker error was not harmless because the Government failed to point to anything in

the record that showed the district court would have imposed the same sentence under

an advisory system); United States v. Haidley, 400 F.3d 642, 644-45 (8th Cir. 2005)

(holding Booker error was not harmless because the district court sentenced defendant

at the bottom of the guidelines range). Therefore, we cannot say the error was

harmless.

Accordingly, we vacate Zavala’s sentence and remand to the district court for

resentencing. However, nothing in this opinion should be construed as an indication

that we think a more lenient sentence is necessary. Based on the record before us, we

simply decline to speculate that the district court would have imposed the same

sentence under an advisory guidelines scheme considering the full range of § 3553(a)

factors. See United States v. Turnbough, No. 04-3242 (8th Cir. Oct. 11, 2005). 

III. CONCLUSION

For the reasons set forth above, we affirm Zavala’s conviction, but we vacate

his sentence and remand to the district court for resentencing under an advisory

guidelines regime.

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