* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 20, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10730

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ANTHONY STEVEN AGUILAR, also

known as Antonio; JEFFREY RYAN;

JEFFREY ALAN BREVICK

Defendants - Appellants

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:05-CR-195-5

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Appellants Aguilar and Brevick were convicted of conspiracy to possess

with intent to distribute and to distribute more than 50 grams of pure

methamphetamine. Appellant Ryan was acquitted on that count, but was

convicted of maintaining a drug-involved premises. The appellants appeal their
No. 06-10730

2

convictions and sentences on numerous grounds. For the reasons that follow, we

AFFIRM.

I.

We consider first the issues raised by Aguilar. He argues that the district

court erred by denying his motion to suppress and by relying on unreliable

hearsay in sentencing him.

A.

Aguilar moved to suppress evidence of methamphetamine found in a box

that he threw into an open garage while walking away from police officers. The

police were at the apartment complex, where Aguilar lived with his girlfriend,

to investigate a report of shots being fired. One of the officers seized the box

from the garage and opened it, without a warrant. Later, the officer obtained

consent to search the garage from a person who was an overnight guest at the

apartment, who had parked her vehicle in the garage from which the box was

seized. The district court admitted the evidence on the basis that it inevitably

would have been discovered in the consensual search.

Even if we assume that the district court erroneously applied the

inevitable discovery exception to the warrant requirement, any error is

harmless. There was little testimony about the methamphetamine found in the

box, the government did not introduce any physical evidence or chemical

analysis of the substance, and the prosecutor did not refer to the evidence in

closing argument. There was overwhelming evidence that Aguilar purchased ice

methamphetamine in quantities of quarter-pounds and larger from two different

suppliers, that he sold ice on numerous occasions in quantities ranging from

grams to ounces, and that he and a supplier opened a used car business together

as a front for their drug business. Although the evidence against Aguilar

consisted largely of the testimony of informants, there is no basis for concluding
No. 06-10730

3

that the jury would have rejected the informant testimony in the absence of the

evidence of the methamphetamine found in the box.

B.

Aguilar raises two issues relating to his sentence. First, he argues that

the district court erred by increasing his base offense level by two levels for his

role as a supervisor or manager. The Presentence Report (“PSR”) recommended

the enhancement based on information that, in an interview with federal agents,

a co-defendant, Flores, told the agents that Aguilar employed Matthew Becker

as a runner. Aguilar’s counsel filed an objection to the PSR, stating: “The

defendant denies knowing Matthew Becker and Matthew Becker did not testify

at trial.” In response to the objection, the government stated that the

information was developed as a result of an extensive investigation and

numerous statements of witnesses and participants believed to be reliable. In

an addendum to thePSR,the probation officer disagreed with Aguilar’s objection

and stated that the information relied on for the enhancement was derived from

a DEA Form 6 prepared by Agent McAuliffe on March 23, 2004, which contains

an accurate summary of information provided by Francisco Flores during an

interview with government agents. 

On June 27, three days before the sentencing hearing, the district court

entered an order stating that it had reviewed the PSR and the objections and

had tentatively concluded that the objections were without merit. The court

stated that it was advising the parties of its tentative conclusion so that it could

be taken into account by the parties in determining the presentations to be made

at the sentencing hearing. At the sentencing hearing on June 30, the district

court asked Aguilar if he wished to offer any evidence in opposition to the PSR,

and, through his counsel, he declined. His counsel objected to the enhancement,

stating: “It’s alleged that Mr. Aguilar supervised a Matthew Becker, and

Matthew Becker’s name apparently only comes from one ofthese people who are
No. 06-10730

4

felons. And nobody has ever talked to Matthew Becker, no law enforcement

agent has talked to a Matthew Becker, or even found that one exists.” Aguilar

did not testify at the sentencing hearing.

Flores’s omission of any mention of a runner in his trialtestimony does not

make that testimony contradictory or inconsistent with what he told the federal

agents in the interview, as reported by the PSR. Because Aguilar did not

present any evidence in opposition to the PSR, but simply made a conclusory

objection, the district court did not err by adopting the PSR’s findings. See

United States v. Peters, 283 F.3d 300, 314-15 (5th Cir. 2002) (affirming role

enhancement where defendant “objected to the enhancement based on his

activities, [but] he did not offer evidence that refuted the findings of the PSR”).

Aguilar acknowledges that his second argument with respect to his

sentence -- that is, that Crawford v. Washington, 541 U.S. 36 (2004), should

apply when hearsay information is used to dramatically increase a defendant’s

sentence -- is foreclosed by United States v. Beydoun, 469 F.3d 102, 108 (5th Cir.

2006) (“there is no Crawford violation when hearsay testimony is used at

sentencing, rather than at trial”). He raises the issue to preserve it for further

review.

II.

We now consider the issues raised by Brevick. He argues that his initial

trial counsel rendered ineffective assistance by failing to inform him of a plea

offer, that the district court erred by admitting evidence of his possession of

methamphetamine when he was arrested after the conspiracy had ended, that

the district court erred by allowing his common-law wife to testify against him

without inquiry into the applicability of the marital privilege, and that the

evidence is insufficient to support the district court’s findings at sentencing as

to the weight and purity of the methamphetamine for which he was held

accountable.
No. 06-10730

5

A.

Following an evidentiary hearing on Brevick’s motion for a new trial based

on ineffective assistance,the district courtfound thatthe government had never

made a plea offer to Brevick’s initial trial counsel, but instead that the

prosecutor merely mentioned to counsel that the government might be willing

to enter into a cooperation agreement with Brevick. The district court found

that counsel relayed this conversation to Brevick, and that Brevick indicated

that he was not interested. The court concluded that counsel reasonably did not

pursue the matter further, and also noted that it probably would not have

accepted such a plea. Brevick has not carried his burden of demonstrating that

the district court’s factualfindings are clearly erroneous. We therefore reject his

claim of ineffective assistance of counsel.

B.

The indictment alleged that the conspiracy continued until December 14,

2005, the date of the indictment. When Brevick was arrested a little less than

three weeks later, on January 4, 2006, at his home, the arresting officers found

several baggies of methamphetamine and drug paraphernalia under the bed

where Brevick was hiding. The district court overruled Brevick’s objection that

the evidence was irrelevant, and admitted it as to the issues of intent and

absence of mistake or accident. Brevick argues that the evidence was

inadmissible under Fed. R. Evid. 404(b), that he did not challenge intent or lack

of accident or mistake, and that we must remand because the district court

failed to find that the evidence was relevant to a trait other than his character

or thatits probative value was not substantially outweighed by undue prejudice.

See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).

Any error in admitting evidence of the methamphetamine seized when

Brevick was arrested is harmless. The district court instructed the jury that the

seizure of methamphetamine in Brevick’s home occurred after the conspiracy
No. 06-10730

6

charged in the indictment had ended and thus it was not proof that he

participated in the conspiracy, and that the evidence was admitted against

Brevick, who was contending that he was not guilty, solely as to the issues of

intent and absence of mistake or accident. The government did not refer to the

evidence in its closing argument, and the evidence of Brevick’s guilt was

overwhelming: several witnesses testified that they sold ice methamphetamine

to Brevick; other witnesses testified that Brevick supplied ice to them; Brevick

was identified by law enforcement officers during surveillance of a warehouse;

and another witness, Salee, testified that Brevick opened his own warehouse to

distribute ice after Salee’s warehouse was shut down.

C.

The district court did not commit reversible error by allowing Lynne

Gerganess to testify against Brevick without first conducting a hearing to

determine if she voluntarily waived the marital privilege or whether any of her

testimony would fall within the scope of marital communications covered by the

privilege. On the witness stand, Gerganess testified that she did not consider

herself to be Brevick’s common-law wife. She disavowed a handwritten

declaration, signed by her and Brevick, purporting to declare that they were

common-law spouses. Furthermore, Brevick has not identified any testimony

by Gerganess that would fall within the scope of the communications aspect of

the marital privilege.

D.

The district court rejected Brevick’s objections to the PSR and accepted the

PSR’s determination that Brevick was responsible for more than 1.5 kilograms

of ice methamphetamine. Brevick argues that there was no specific, reliable

evidence that the methamphetamine was ice as opposed to regular

methamphetamine and thus his base offense level should have been 34 rather

than 38. We reject this contention. The district court’s findings are supported
No. 06-10730

7

by the evidence presented at trial and by the debriefing statements of Brevick’s

suppliers, as reported in the PSR, and Brevick offered no evidence to rebut the

PSR’s findings.

III.

Finally, we consider the issues raised by Ryan. He argues that there is

insufficient evidence to support his conviction for maintaining a drug-involved

premises. He also contends that the district court erred by finding that he

participated in the underlying drug offense in calculating his base offense level,

by denying his motion to suppress, and by finding that it could not consider a codefendant’s plea bargain in deciding whether to grant a downward departure

from the Sentencing Guidelines range.

A.

Ryan argues that the government failed to meet its burden of proving

beyond a reasonable doubt that he intended to maintain his residence for the

purpose of manufacturing, distributing, or using drugs. He maintains that in

the residential context, the manufacture, distribution, or use of drugs must be

at least one of the primary or principal uses to which the house is put. He

asserts that the evidence at trial established only that people used drugs

recreationally at his home, and that the consumption of drugs there was

incidental to the primary purpose of residence.

The indictment charged Ryan with violating 21 U.S.C. § 856(a)(1) and (2).

To sustain a conviction under § 856(a)(1), “the government must prove that the

defendant (1) intentionally and knowingly (2) opened or maintained a place (3)

for the purpose of using, manufacturing or distributing a controlled substance.”

United States v. Roberts, 913 F.2d 211, 219 (5th Cir. 1990). “[T]he government

need not prove that drug distribution was the primary purpose of [the

defendant’s maintaining the place], merely that drug distribution was a

significant purpose.” UnitedStates v. Meshack, 225 F.3d 556, 571 (5th Cir. 2000)
No. 06-10730

8

(internal quotation marks and citation omitted). For a violation of § 856(a)(2),

the government must prove that the defendant “(1) managed or controlled [a

place] (2) either as an owner, lessee, agent, employee or mortgagee and (3)

knowingly and intentionally rented, leased or made available for use with or

without compensation, the building for the purpose of unlawfully manufacturing,

storing, distributing or using a controlled substance.” United States v. Cooper,

966 F.2d 936, 942 n.8 (5th Cir. 1992). This court has stated that “§ 856(a)(2) is

designed to apply to the person who may not have actually opened or maintained

the place for the purpose of drug activity, but who has knowingly allowed others

to engage in those activities by making the place ‘available for use ... for the

purpose of unlawfully’ engaging in such activity.” United States v. Chen, 913

F.2d 183, 190 (5th Cir. 1990).

PriscillaPena testified thatfrom 2002 to 2004, she was engaged in the sale

and distribution of ice methamphetamine. She testified that she and Ryan

were personal friends and had attended the same elementary and junior high

schools. When asked whether she stored drugs at Ryan’s house, she said that

occasionally she would leave drugs there if she was going somewhere, but that

she usually would go to his house to “hang out” or to meet Steve Hitchcock, who

was staying with Ryan at the time and was buying 2 to 4 ounces of ice

methamphetamine from her usually every two weeks, if not every week, for a

couple of months. She testified that Ryan knew that she was using his house as

a meeting place for sales, and that he was there when some of the sales took

place. She testified further that, on two occasions, she watched Ryan use

acetone to wash ice methamphetamine at his home. Pena testified that when

she spoke to Ryan on the telephone, some of the conversations were about

arranging to either store or smoke ice methamphetamine and others were social

in nature. 
No. 06-10730

1 Flores testified that Pena was his girlfriend from 2000 to 2002.

2 The record contains nothing to indicate the size of the safe. Pena’s brother-in-law

testified that he saw Ryan and Pena with the safe in the check-out line at the store where they

purchased it, so presumably it was not an extremely large or heavy safe.

3 Ryan’s mother testified that the room was also the only place in the house where legal

cigarettes were smoked. 

9

Pena testified that she was involved in a romantic relationship with

Francisco Flores from 1999-2001,1 and that they remained friends and were

involved in a drug business relationship for about two and one-half years after

their romantic relationship ended. Flores testified that he took ice

methamphetamine to Pena at Ryan’s house and that he smoked ice

methamphetamine with Pena and Ryan at Ryan’s house. 

Pena testified that she purchased a pound of ice methamphetamine from

Chris Almaguer and left it in a friend’s car. When she went to retrieve the drugs

from the friend’s car, she learned that the car was at a mall, so Ryan took her to

the mall to get the drugs. She testified that Ryan and his girlfriend were

fighting and they were afraid that the girlfriend might take the drugs, so Ryan

took her to a Wal-Mart to purchase a safe in which to store the drugs at his

house.2 Ryan programmed the electronic code on the safe, and he was the only

person who knew the combination. Ryan and Pena stored the safe with the

pound of ice in the “smoke room,” an upstairs room at Ryan’s house that was

designated as the place where he and his friends smoked ice.3 Pena stated that

she smoked ice in the smoke room with Ryan and others, and that Ryan

occasionally provided ice for other people to smoke. Pena testified that the

pound of ice was stored in the safe at Ryan’s house only for a day or a couple of

days, because he told her she needed to get it out of his house. Law enforcement

officers found the safe in the smoke room when they searched Ryan’s home after

he was arrested.
No. 06-10730

10

Ryan contends that the evidence is insufficient to establish that he

maintained his house for the purpose of drug use or distribution and that he was

merely helping a friend when he allowed Pena to store the pound of

methamphetamine at his house. He explains that the smoking room at his home

was maintained to prevent anyone who smoked (legal cigarettes or controlled

substances) from “smoking up” the entire house. He contends that he

maintained his home for the purpose of residing in it and that any drug activity

there was only incidental. It was within the jury’s prerogative to weigh the

evidence and reject Ryan’s explanation. Although not overwhelming, the

evidence was sufficient to permit a rational juror to conclude that Ryan

knowingly made his home available to others for the purpose of unlawfully

storing, distributing, and using ice methamphetamine.

B.

The district court found that Ryan was involved in the underlying drug

activity and increased his base offense level to 34, based on 457 grams of

methamphetamine, consisting of the pound (453.6 grams) of ice that Ryan and

Pena stored in Ryan’s home, and the 3.4 grams that Ryan possessed when he

was arrested. Ryan argues that his sentence is unconstitutional because it is

based on facts he did not admit and which were not proved to a jury beyond a

reasonable doubt. He argues that his sentence was improperly enhanced

because he was acquitted on the drug conspiracy count and had no involvement

with drug activity other than as a casual user.

Ryan’s sentence is not unconstitutional. The district court properly

treated the guideline range as advisory, and it was free to find the facts used to

calculate that range at sentencing by a preponderance of the evidence. The

district court’s finding that Ryan was involved in the underlying drug activity

is supported by the evidence presented at trial and the findings in the PSR.

Ryan’s acquittal on the conspiracy count does not preclude the district court from
No. 06-10730

11

considering Ryan’s conduct in the drug conspiracy. United States v. Valdez, 453

F.3d 252, 264 (5th Cir. 2006).

C.

Ryan next raises questions about the legality of his arrest, the search of

his automobile, and the consent to search his house. On January 28, 2004, Pena

went to Ryan’s house to retrieve the pound of ice she had stored there in the

safe. When she left, police officers stopped her car, but she refused to consent

to a search, so the officers let her go. She drove away, then stopped at a park,

where she called Ryan to tell him what had happened. Ryan and his girlfriend

left his house and arrived at Pena’s location. Pena got into Ryan’s vehicle. They

headed north, then made a U-turn and returned to Pena’s vehicle. Pena got out

of Ryan’s vehicle and got into her own. Ryan followed Pena closely as they drove

away. Officers conducting surveillance stopped Ryan after they saw him change

lanes without signaling. He refused to consent to a search of his car, and he was

arrested on the traffic violation. When the officers searched his car, they found

a small amount of ice.

When Ryan was pulled over, Pena sped away toward the airport. She

drove through the airport at 80 miles per hour, and airport police saw her

dumping drugs out of her car onto the road. She was eventually apprehended

and arrested.

After Pena was apprehended, Ryan signed a consent to search his

residence. He told the agents they would find narcotics in the house. During the

search, officers found the safe and drug paraphernalia in the smoking room. In

a freezer in Ryan’s garage, the officers found a jar that contained a “wash”

solution consisting of acetone and methamphetamine residue. The district court

denied Ryan’s motion to suppress evidence of the contents of the jar. Although

the district court found that the officers’ subjective reason for arresting Ryan

was his refusal to consent to a search of his vehicle, it also concluded that they
No. 06-10730

12

had an objectively reasonable basis for arresting him based on the traffic

violation. The court further found that the officers had probable cause to believe

that Ryan was engaged in drug trafficking activities at the time he was stopped

and that there might be some evidence of that activity in his vehicle.

In his opening brief, Ryan argues that the government failed to establish

any basis for the initial stop of his vehicle, and argues that the search of the car

and the consent to search his home were all products of the illegal initial stop.

In his reply brief, he concedes thatthere was probable cause for the police to stop

his vehicle for changing lanes without signaling, but argues, for the first time,

that his arrest was illegal because the sole reason that he was arrested was his

refusal to consent to the search of his car.

Generally, we do not consider arguments raised for the firsttime in a reply

brief. United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). In any event,

the district court correctly concluded that there was no Fourth Amendment

violation because the officers had probable cause to arrest Ryan based on the

traffic violation. Therefore, his consent to search his home was not the fruit of

an illegal arrest, and the district court did not err by admitting evidence of the

contents of the jar found in Ryan’s freezer.

D.

Ryan argues that the district court erred by concluding that it could not

consider the plea agreement and lenient sentence of co-defendant John Grote in

deciding whether to depart downward from the Sentencing Guidelines range.

Ryan asserts that Grote received a lenient sentence because he is wealthy. Ryan

maintains that because he is less culpable than Grote, a downward departure

for him is the only way to eliminate the sentencing disparity based on wealth.

We have no jurisdiction to review the denial of a downward departure

unless there is some indication in the record that the district court erroneously

believed thatitlacked authority to depart. UnitedStates v. Hernandez, 457F.3d
No. 06-10730

13

416, 424 & n.5 (5th Cir. 2006). The district court expressed its concern with the

leniency of Grote’s sentence, but concluded thatit would be inappropriate to give

the “freaky” sentence of one of Ryan’s co-conspirators significant weight.

Because the district court was aware of its authority to depart, but exercised its

discretion not to do so, its decision not to depart is unreviewable.

IV.

For the foregoing reasons, the appellants’ convictions and sentences are

AFFIRMED.