United States Court of Appeals

For the Eighth Circuit

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No. 20-1536

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

James Flaherty Hill

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota

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 Submitted: February 15, 2021

Filed: August 10, 2021

[Published]

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Before LOKEN, COLLOTON, and BENTON, Circuit Judges. 

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PER CURIAM.

An indictment charged James Flaherty Hill with conspiracy to distribute and

possession with intent to distribute 500 grams or more of a methamphetamine mixture
in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A), and 846. After the district court1

denied his motion to suppress evidence seized during a warrant search, a jury

convicted Hill of both charges. The district court, varying downward, sentenced him

to 204 months’ imprisonment. Hill appeals, arguing the court erred in denying his

motion to suppress and imposed a substantively unreasonable sentence. We affirm.

I. Suppression Issues.

In November 2016, drug task force agents were investigating drug dealer James

Johnson (“Jay”). On November 10, Special Agent Matt Lund applied for a warrant

to search a single family residence on Palm Street in Coon Rapids, Minnesota. His

supporting affidavit recited that a known cooperating defendant (CD) was recently

arrested with a large quantity of suspected methamphetamine. Interviewed by Lund

in jail, the CD said Jay had told him to come to the house on Palm Street to pick up

a large quantity of meth. The CD entered the house where Jay gave him a half pound

of meth. The CD was arrested after leaving. The CD said guns and a man named

“Whitey” were in the house. Shown unlabeled photos, the CD identified Jay as

Johnson and Whitey as Hill, the owner of the Palm Street residence. Lund applied

for a warrant to search the residence, “any appurtenant structures thereto, including

garages, sheds and storage areas and the homes [sic] curtilage,” and a “[l]arge white

pull behind camping trailer in driveway.” An Anoka County District Court Judge

issued a warrant to search “the described premises and vehicle” for a lengthy list of

identified types of property. 

Lund testified he planned to execute the warrant on November 15, explaining

the delay was due to the need to approach members of the drug trafficking ring with

1The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota, adopting the Report and Recommendation of the Honorable

Hildy Bowbeer, United States Magistrate Judge for the District of Minnesota.

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“extreme caution.” Lund learned that a GPS device had been put on the vehicle of

Johnson’s suspected source of narcotics. A drive-by revealed the vehicle parked at

the Palm Street address. On November 14, that vehicle was tracked traveling to a

truck stop and returning. Lund believed the vehicle had picked up a load of

methamphetamine and decided to stop it when it left Hill’s residence. The vehicle

was stopped and a canine unit was called when the driver admitted “he had a lot of

dope.” Hill, driving a white Plymouth Acclaim, stopped and asked to have the

vehicle returned to him, then followed the vehicle to the lot where it was impounded. 

Lund, concerned evidence was being removed from the house, moved execution of

the warrant to November 14. Later that day, Hill returned to the house and parked a

white pickup truck facing the street. A maroon vehicle registered to Johnson parked

at the residence. The driver soon exited the house carrying bags or packages, and the

maroon vehicle and Hill’s Acclaim left at the same time. Police followed. When Hill

took evasive maneuvers, the maroon vehicle was stopped, and methamphetamine,

cocaine, marijuana, and firearms were seized. Police then executed the warrant,

searching the house, the large RV named in the warrant, and the white pickup parked

in the driveway facing the street. They found indicia of drug trafficking and several

guns in the house and a cell phone and two digital scales with drug residue in the

white pickup.

On appeal, Hill first argues the warrantless search of his white pickup was

invalid because the truck was not named in the search warrant, and police lacked

independent probable cause that there was contraband in the truck so the “automobile

exception” to the Fourth Amendment’s warrant requirement did not apply. 

First, we agree with the district court that Hill failed to preserve this issue when

he did not identify the seized items he wanted suppressed, as District of Minnesota

Local Rule 12.1(c)(1)(B) requires. Prior to 2014 amendments to Rule 12 of the

Federal Rules of Criminal Procedure, we held that failure to raise an issue in a pretrial

motion to suppress was a waiver under Rule 12(e) that precluded appellate review. 

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See United States v. Green, 691 F.3d 960, 963-64 (8th Cir. 2012). The 2014

amendments dropped the explicit reference to “waiver” and relocated Rule 12(e) in

a new paragraph 12(c)(3). The Rule now provides that, when a pretrial motion is

untimely, a court “may consider the defense, objection, or request if the party shows

good cause.” Here, Hill’s failure to identify this issue in his motion to suppress was

noted in the magistrate judge’s Report and Recommendation, yet Hill made no

showing of good cause excusing the untimeliness in his objections to the district court

or in arguing the issue on appeal. In United States v. Bernhardt, 903 F.3d 818, 824

(8th Cir. 2018), we noted: “Although there is authority suggesting that the absence

of good cause forecloses the point altogether, we will assume for the sake of analysis

that plain-error review is available.” Making the same assumption in this case, Hill’s

omission was significant, the government argues, because evidence seized in the

white pickup was slight and cumulative, and the government might have elected not

to offer it had the issue been timely raised. In these circumstances, granting a new

trial on plain error review would require a high showing of prejudicial constitutional

error. 

Second, we conclude that there was no error. In United States v. Coleman, 909

F.3d 925 (8th Cir. 2018), the defendant made the same argument after police

executing a warrant to search his premises also searched his vehicle parked in the

driveway. Distinguishing Collins v. Virginia, 138 S. Ct. 1663, 1669-71 (2018), we

rejected the argument. “We conclude that the warrant to search ‘the premises and

curtilage area’ permitted the officers either to search a vehicle parked in the curtilage,

or, more prudently, to have a drug dog sniff the vehicle’s exterior to confirm there

was probable cause to search the vehicle for contraband named in the warrant.” 909

F.3d at 932. Hill argues this was dicta because police called for a drug dog in

Coleman. It was not dicta. In addition, Hill’s assertion that this was a warrantless

search of his truck because the RV was the only vehicle named in the warrant is

without merit. “[A] vehicle found on a premises (except, for example, the vehicle of

a guest or other caller) is considered to be included within the scope of a warrant

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authorizing a search of that premises.” United States v. Pennington, 287 F.3d 739,

745 (8th Cir.) (cleaned up), cert. denied, 537 U.S. 1022 (2002). Thus, we need not

consider whether the district court erred in concluding the automobile exception

applied because the officers had probable cause to search the vehicle. 

Hill further argues the information provided by the CD was not sufficiently

reliable to provide probable cause to issue the warrant. Like the district court, we

disagree. The CD was known; he provided first-hand information against his criminal

interest in a face-to-face interview with Agent Lund, including identifying Johnson

and Hill from unlabeled photos; and much of the information was corroborated by the

extensive on-going investigations. The information was sufficiently reliable to

support the presumptively valid warrant. See, e.g., United States v. Williams, 10 F.3d

590, 593-94 (8th Cir. 1993).

II. The Sentencing Issue.

Prior to sentencing, both parties submitted detailed sentencing memoranda

discussing their respective objections to the Presentence Investigation Report’s

determination of the advisory guidelines sentencing range, 360 months to life

imprisonment. At the hearing, the court adopted the PSR range. The government

urged a sentence at the bottom of the range, 360 months. Hill urged a mandatory

minimum sentence of 120 months, noting that three cooperating conspirators had

received sentences substantially less than 360 months. The court, applying the

sentencing factors in 18 U.S.C. § 3553(a), imposed concurrent 204-month sentences

of each count, noting that “I’ve looked at each of the codefendants.” 

On appeal, Hill argues the district court abused its discretion and imposed a

substantively unreasonable sentence because 204 months imprisonment is greater

than necessary to accomplish the § 3553(a) goals and creates an unwarranted

sentencing disparity with (i) four similarly situated co-defendants, who received

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significantly lower sentences, including two who were also subject to the 120-month

mandatory minimum; and (ii) the nationwide average sentence imposed on those

convicted of methamphetamine offenses in fiscal year 2019, 95 months. Hill argues

that our refusal “to consider the particular sentencing proclivities of specific judges”

is contrary to the mandate of 18 U.S.C. § 3553(a)(6).2

 

We have consistently rejected these arguments. As the sentencing records of

Hill’s co-defendants are not before us, we are not in a position to evaluate his claim

of unwarranted disparities. See United States v. Maxwell, 778 F.3d 719, 736 (8th

Cir.), cert. denied, 135 S. Ct. 2827 (2015). In these circumstances, “[w]hen a single

defendant asserts on appeal that a similarly situated co-conspirator was sentenced

differently, and both sentences are within the range of reasonableness, there is no

principled basis for an appellate court to say which defendant received the

‘appropriate’ sentence.” United States v. Fry, 792 F.3d 884, 893 (8th Cir. 2015). 

Here, as in Fry, the comparators proffered by Hill were not similarly situated because

they pleaded guilty, accepted responsibility, and cooperated with the government,

“earning leniency that justified differential treatment.” Id. Likewise, Hill’s reliance

on national statistics of sentences imposed by different judges provides an appellate

court “no principled basis . . . to say which defendants received the appropriate

sentence.” United States v. McElderry, 875 F.3d 863, 865 (8th Cir. 2017), cert.

denied, 138 S. Ct. 2003 (2018). 

The district court expressly considered the sentences imposed on other

conspirators, noted significant ways in which Hill was not similarly situated for

sentencing purposes, and granted a substantial downward variance from the advisory

2Hill’s reply brief also argues that imposing a harsher sentence than the

sentences of more culpable co-defendants violated his due process rights. We do not

consider arguments made for the first time in a reply brief.

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guidelines range. As in United States v. Baez, 983 F.3d 1029, 1044 (8th Cir. 2020),

cert. denied, 2021 WL 2302094 (Jun. 7, 2021), there was no abuse of discretion.

The judgment of the district court is affirmed.

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