FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

March 12, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13153

Non-Argument Calendar

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D. C. Docket No. 06-00269-CR-CAP-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

JEU HERRERA-CONTRERAS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(March 12, 2008)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Appellant Jeu Herrera-Contreras (“Herrera”) appeals his convictions and
We would be faced with a different question if there were no warrant to search the 1

premises.

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292-month sentence for conspiracy to distribute cocaine, in violation of 21 U.S.C.

§ 846, and conspiracy to commit money laundering, in violation of 18 U.S.C.

§ 1956(h). 

First, he argues on appeal that law enforcement officers violated his rights

under the Fourth Amendment by testing a key, seized from him incident to his

arrest, to see if it fit the lock on a closet in which officers found evidence of drug

trafficking and money laundering. He argues that he possessed a reasonable

expectation of privacy in the information that his key fit the lock, and, therefore,

the warrantless testing of his key did not fall under any exception to the Fourth

Amendment’s prohibition against unreasonable searches, even though the officers

had a warrant to search the premises.1

“In reviewing a district court’s denial of a motion to suppress, we review its

findings of fact for clear error and its application of law to those facts de novo.” 

United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007), cert. denied,

127 S. Ct. 2924 (2007). The district court’s factual findings are construed in the

light most favorable to the prevailing party. United States v. Smith, 459 F.3d 1276,

1290 (11th Cir. 2006), cert. denied, 127 S. Ct. 990 (2007). 

The Fourth Amendment prohibits “unreasonable” searches and seizures of
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areas in which a person enjoys a “reasonable expectation of privacy.” United

States v. Segura-Baltazar, 448 F.3d 1281, 1285 (11th Cir. 2006) (quotation

omitted). The Supreme Court has held that, while simply looking at an object in

plain view does not constitute a search, “taking action,” such as, for example,

moving a piece of stereo equipment in order to observe its serial numbers,

constitutes a “search” because it “expose[s] to view” something that was

theretofore concealed. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149,

1152-53 (1987). 

The Supreme Court has established an exception for unwarranted searches

that are performed incident to custodial arrest, which is justified by “the

reasonableness of searching for weapons, instruments of escape, and evidence of

crime when a person is taken into official custody and lawfully detained.” United

States v. Edwards, 415 U.S. 800, 802-03, 94 S. Ct. 1234, 1236-37 (1974). The

Supreme Court further noted that, in a search incident to arrest, a defendant’s

belongings may be seized “and later subjected to laboratory analysis[, and] the test

results are admissible at trial.” Id. at 803-04, 94 S. Ct. at 1237. 

Because the record demonstrates that law enforcement agents seized

Herrera’s keys pursuant to a lawful search incident to arrest, and used the key in

executing their warrant to search the premises which dissipated his reasonable
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expectation of privacy regarding the keys, seized as evidence, we conclude that the

district court did not err in denying his motion to suppress evidence obtained when

agents used his keys to unlock the closet, and we affirm his convictions. 

Next, Herrera argues that the district court clearly erred by holding him

accountable, at sentencing, for 5,945.5 kilograms of cocaine, which was the

amount discerned by the probation officer in the Presentence Investigation Report.

A district court’s determination of drug quantity is reviewed for clear error. 

See United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). When the

defendant objects to the base offense level, the government must establish the

quantity of drugs by a preponderance of the evidence. United States v. Agis-Meza,

99 F.3d 1052, 1055 (11th Cir. 1996). Pursuant to U.S.S.G. § 2D1.1(c)(1), the base

offense level for an offense involving 150 kilograms or more of cocaine is 38. In a

multi-participant conspiracy, an individual defendant is responsible for his own

acts, as well as the reasonably foreseeable acts of others taken in furtherance of the

jointly undertaken conspiracy. United States v. Ismond, 993 F.2d 1498, 1499 (11th

Cir. 1993). 

Because ledgers to which Herrera had access, and on which authorities

discovered his fingerprints, detailed numerous drug transactions exceeding 150

kilograms each, the record supported the district court’s determination that he was
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accountable for 5,945.5 kilograms of cocaine. 

Next, Herrera argues that the district court erred by not crediting him with a

reduction for his allegedly minor role in the offense. We review a district court’s

determination of whether a defendant qualifies for a minor-role reduction for clear

error. United States v. Rodriguez De Varon, 175 F.3d 930, 945 (11th Cir. 1999). 

The defendant bears the burden of proving his minor role by the preponderance of

the evidence. Id. The district court must measure the defendant's role against the

relevant conduct for which he has been held accountable at trial, and, if that is not

dispositive, it may, “measure the defendant’s culpability in comparison to that of

other participants in the relevant conduct.” Id. at 941, 944. 

Because Herrera did not present any evidence that his actual conduct was

minor relative to the relevant conduct for which he was implicated, nor did he

demonstrate that his role in the relevant conduct was minor relative to other

discernable co-conspirators, the district court did not err in declining to credit him

with a minor-role reduction.

Finally, Herrera argues that his sentence was unreasonable because he

previously worked to support his family, had no prior criminal record, had only a

small, non-violent role in the cocaine distribution conspiracy, did not lie on the

witness stand, and was the only one of all of his co-conspirators to receive a
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conviction.

When reviewing a sentence, we must first determine that the “district court

committed no significant procedural error, such as failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

[or] failing to consider the § 3553(a) factors.” Gall v. United States, __ U.S. __, __

128 S. Ct. 586, 597 (2007). If we conclude that the district court made no

procedural errors, we “should then consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard.” Id. at __, 128 S. Ct. at

597. In reviewing for substantive reasonableness, we consider the sentence, in its

entirety, in light of the 18 U.S.C. § 3553(a) factors, which include:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need to reflect the seriousness

of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need to

protect the public; (5) the need to provide the defendant with needed

educational or vocational training or medical care; (6) the kinds of

sentences available; (7) the Sentencing Guidelines range; (8) pertinent

policy statements of the Sentencing Commission; (9) the need to

avoid unwanted sentencing disparities; and (10) the need to provide

restitution to victims.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (citing 18 U.S. C. §

3553(a)). 

Because Herrera’s sentence fell at the low end of the guideline range for his

offense, and the district court made specific findings with regard to the reasons for
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the sentence that it imposed, we conclude that his sentence was not unreasonable. 

Accordingly, we affirm his sentence.

AFFIRMED.