IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40167

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ELOY SILVA, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-311-1

Before STEWART, Chief Judge, and JOLLY and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Eloy Silva appeals the denial of his motion to 

suppress and his sentence. We affirm.

 

* 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

June 14, 2017

Lyle W. Cayce

Clerk

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I.

FACTS AND PROCEEDINGS

In March 2015, the U.S. Marshals Service executed an arrest warrant on 

Silva for violation of his parole. After Silva was detained outside his trailer, 

two U.S. Marshals with the Gulf Coast Violent Offender Task Force conducted 

a protective sweep of the trailer to check for individuals inside. They did not 

have a search warrant. During the sweep, one of the marshals opened a 

compartment under a mattress and discovered a shotgun, ammunition, and 

body armor. No one other than Silva was found in the trailer or on the property.

Silva, a felon with an extensive criminal history, was charged with one 

count of being a felon in possession of a firearm and ammunition, in violation 

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Silva filed a motion to suppress the 

firearm and ammunition, claiming that (1) the protective sweep was neither 

reasonable nor permissible, and (2) alternatively, the officers exceeded the 

scope of a lawful protective sweep. After conducting an extensive suppression 

hearing, the district court denied Silva’s motion. He subsequently pleaded 

guilty without a plea agreement.

Silva’s presentence report reflected that his base offense level was 20 

and, with a two-level reduction for acceptance of responsibility under 

§ 3E1.1(a) of the United States Sentencing Guidelines (“Sentencing 

Guidelines” or “USSG”), his total offense level was 18.1 Silva’s extensive 

criminal history yielded a total criminal history score of 31, placing him in 

criminal history category VI.2 As a result, Silva’s range of imprisonment under 

 

1 U.S. SENTENCING GUIDELINES MANUAL § 2K2.1 (U.S. SENTENCING COMM’N 2014). 

All references to the Sentencing Guidelines are to the 2014 edition, the edition applicable to 

this case.

2 U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N

2014).

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the Sentencing Guidelines was 57 to 71 months.3 Silva objected to the PSR, 

contending, inter alia, that he was entitled to a third level of reduction for 

acceptance of responsibility under USSG § 3E1.1(b). The district court 

overruled Silva’s acceptance-of-responsibility objection, adopted the PSR, and 

sentenced him to 64 months of imprisonment followed by 3 years of supervised 

release. Silva timely appealed.

II.

ANALYSIS

Silva argues that the district court erred in denying his motion to 

suppress because (1) the protective sweep was not justified, and 

(2) alternatively, the officers exceeded the scope of a lawful protective sweep. 

Silva also contends that the district court erred procedurally by failing to 

reduce his offense level for acceptance of responsibility under USSG § 3E1.1(b).

A. Motion to Suppress

When considering a district court’s denial of a motion to suppress, we 

review its findings of fact for clear error and its conclusions of law de novo.4 “In 

reviewing findings of fact, we view the evidence in the light most favorable to 

the party prevailing below, which in this case is the Government.”5

A warrantless entry into a home is presumptively unreasonable.6

Exigent circumstances, however, may justify a warrantless entry.7 When a 

 

3 Id.

4 United States v. Henry, 853 F.3d 754, 756 (5th Cir. 2017).

5 Id. (quoting United States v. Andres, 703 F.3d 828, 832 (5th Cir. 2013)).

6 United States v. Howard, 106 F.3d 70, 73 (5th Cir. 1997).

7 Id.

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person is subjected to a warrantless search, the government has the burden of 

proving that the search was justified.8

“A ‘protective sweep’ is a quick and limited search of premises, incident 

to an arrest and conducted to protect the safety of police officers or others.”9

Such a sweep is justified only when there are “articulable facts which, taken 

together with the rational inferences from those facts, would warrant a 

reasonably prudent officer in believing that the area to be swept harbors an 

individual posing a danger to those on the arrest scene.”10 When determining 

whether a protective sweep is justified, we consider the totality of the 

circumstances surrounding the officers’ actions.11 “[W]e ‘review the entirety of 

the agents’ investigative tactics, particularly those leading up to the exigency 

alleged to have necessitated the protective sweep.’”12 If reasonable minds could 

differ on the whether the sweep was warranted, we do not second-guess the 

judgment of experienced law enforcement officers concerning the risks in a 

particular situation.13

1. Was the Protective Sweep Justified?

Silva contends that the protective sweep was not justified or permissible 

because there were no exigent circumstances. He contends alternatively that

the agents created the exigent circumstances.

The evidence before the district court demonstrated that the marshals’ 

protective sweep was justified. U.S. Marshal Alfredo Lujan, the “primary” 

 

8 United States v. Garcia-Lopez, 809 F.3d 834, 838 (5th Cir.), cert. denied, 136 S. Ct. 

2036 (2016).

9 Maryland v. Buie, 494 U.S. 325, 327 (1990).

10 Id. at 334.

11 Howard, 106 F.3d at 74.

12 Id. (quoting United States v. Rico, 51 F.3d 495, 501 (5th Cir. 1995)).

13 United States v. Menchaca-Castruita, 587 F.3d 283, 290 (5th Cir. 2009).

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officer among the team of marshals that executed the warrant, testified that 

he reviewed Silva’s criminal history before executing the arrest warrant. Lujan 

described Silva’s criminal history as “pretty extensive.” His numerous 

convictions included assault, aggravated kidnapping with a weapon, and 

making a terroristic threat. At the time of the instant arrest, there were seven 

outstanding warrants for Silva’s arrest—three for impersonating a peace 

officer, at times with a weapon; three for “unlawful contract with a surety bond 

company”; and one for violation of parole. Lujan also testified that he was 

aware that Silva was a member of the Tango Blast gang, which “started [as] 

small street gangs and ha[s] grown while in prison and ha[s] actually done 

work for the cartels.” Lujan had also received information that there might be

a weapon in the trailer. Lujan testified that Silva’s mother, who it turned out 

owned the trailer, was uncooperative with him regarding Silva’s whereabouts.

When the officers arrived, Silva did not exit the trailer for more than one 

minute. Lujan testified that, even though the marshals had no indication that 

anyone else was inside the trailer, in light of his 13 years of experience, he 

believed the trailer could still contain a safety risk to the officers. Further, U.S. 

Marshal Ray Tamez, who conducted the sweep with Lujan, testified that they 

conducted the sweep because they were concerned for their safety, specifically 

that they could not be certain that no one else was inside the trailer.

At the end of the suppression hearing, the district court concluded that 

it was reasonable for the officers “to be concerned about other people who may 

be affiliated with the Defendant who would want to help [him and] that might 

still be in the trailer.” The court explained that someone else could have 

been in the trailer and “could have stuck a gun out the window [and] shot at 

the officers.” The district court ruled that, as a result, the protective sweep 

was justified.

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Given the testimony presented at the suppression hearing, Silva’s 

criminal history, his gang affiliation, and the officers’ concern that someone 

might have been inside the trailer with a weapon, the district court did not

clearly err in concluding that the officers were reasonably concerned about 

their safety. When we view the evidence in the light most favorable to the 

government, we are convinced that there were “articulable facts which, taken 

together with the rational inferences from those facts, would warrant a 

reasonably prudent officer in believing that the area to be swept harbors an 

individual posing a danger to those on the arrest scene.”14

2. Did the Search Exceed the Scope of a Lawful Protective Sweep?

In the absence of a search warrant, a protective sweep must be “quick 

and limited” and “narrowly confined to a cursory visual inspection of those 

places in which a person might be hiding.”15 “The sweep lasts no longer than 

is necessary to dispel the reasonable suspicion of danger and in any event no 

longer than it takes to complete the arrest and depart the premises.”16

Lujan testified that he spent about five to ten seconds in the trailer, and 

Tamez testified that he spent about 35 to 40 seconds in the trailer. Silva 

presented no evidence to contradict this testimony. Lujan testified that he 

inspected every crawl space in which an individual could hide. He removed 

cushions from two benches, looked under the mattress of a fold-out couch, and 

 

14 Buie, 494 U.S. at 334. Although Lujan testified that Silva “was still standing inside 

the trailer when opening the door” and was standing on the outdoor stairwell leading 

into the trailer, the district court assumed for purposes of the motion that Silva was outside 

of the trailer when he was arrested. Silva asserts that because his arrest occurred outside of 

the trailer, the warrantless search of the trailer was not permissible. This argument is 

unavailing. See United States v. Maldonado, 472 F.3d 388, 393 (5th Cir. 2006) (“The 

protective sweep doctrine may apply even if the arrest occurs outside the home.”), abrogated 

on other grounds by Kentucky v. King, 563 U.S. 452 (2011).

15 Buie, 494 U.S. at 327.

16 Id. at 335–36.

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checked inside cabinets. Tamez found the firearm, ammunition, and body 

armor after he saw a large, “waterbed-type mattress on top of wood, box [sic] 

underneath.” He testified that he believed the wooden box under the mattress 

was hollow and large enough for a person to hide inside, as it was “about seven, 

eight feet in length, maybe six feet wide” and “[a]bout a foot and a half tall.” 

He testified that nothing prevented him from lifting the mattress or the

plywood cover and that there was no locking mechanism on the wooden box.

The district court concluded that, based on the agents’ testimony 

regarding their experience finding individuals in small and hollowed-out 

spaces, Tamez’s lifting of the mattress “was certainly justified” because it was 

possible that a person could hide in the wooden compartment underneath it. 

Lujan, who testified that he has conducted hundreds of protective sweeps for 

more than 13 years, described the “very unique” hiding places in which he has 

discovered individuals: “I have located individuals in hollowed-out water

heaters, false walls, false compartments in floor[s], false appliances, inside 

dryers, inside washers, underneath sinks, underneath benches, underneath 

clothing, closets. Anywhere where a person really wants to hide he could 

actually make himself hide.” Tamez similarly testified that he has located 

individuals in “[d]ressers, hollowed-out dressers, hidden compartments in 

closets, underneath clothes, just a lot of places.” Lujan also testified that he 

limits his protective sweeps to “areas that would be able to conceal a person.” 

Silva has failed to demonstrate that the district court clearly erred in 

determining that the compartment under the mattress was large enough to 

conceal a person, a conclusion that is amply supported by the uncontroverted 

evidence in the record. In light of Lujan’s testimony regarding his experience 

locating individuals in “very unique” places and Tamez’s unrefuted testimony 

that he believed that a person could have been hiding in the wooden 

compartment under the mattress, the search of the trailer, including the 

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wooden box under the mattress, did not exceed the scope of a lawful 

protective sweep.17

B. Acceptance of Responsibility

Silva received a two-level reduction under USSG § 3E1.1(a), but he

contends that the district court erred in denying him a third reduction of one

level for acceptance of responsibility under § 3E1.1(b). He maintains that the

government improperly withheld a § 3E1.1(b) motion in retaliation for his 

exercise of his constitutional rights to file a motion to suppress and to request 

a hearing on it.

We review a district court’s legal interpretations of the Sentencing 

Guidelines de novo and its factual findings for clear error.18 “A factual finding 

is clearly erroneous only if, based on the entirety of the evidence, the reviewing 

court is left with the definite and firm conviction that a mistake has been 

made.”19 We review “a district court’s refusal to reduce a defendant’s offense 

level for acceptance of responsibility under USSG § 3E1.1 with a standard 

‘even more deferential than a purely clearly erroneous standard.’”20

Section 3E1.1(b) provides for an additional one-level decrease to a 

defendant’s base offense level for acceptance of responsibility if the following 

are satisfied:

 

17 See Garcia-Lopez, 809 F.3d at 839 (concluding that a protective sweep that involved 

searching under a mattress in a trailer was permissible because “it was logical under the 

specific facts of this case to suspect that a person might be hiding in a hollowed box spring”); 

cf. United States v. Ford, 56 F.3d 265, 270 (D.C. Cir. 1995) (concluding that a search 

underneath a mattress exceeded the scope of a permissible protective sweep because nothing 

suggested that a person might have been hiding under the mattress and the searching agent 

“testified that it would have been ‘[v]irtually impossible’ for someone to do so” (alteration in 

original)).

18 United States v. Castillo, 779 F.3d 318, 321 (5th Cir. 2015).

19 Id.

20 United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003) (quoting United 

States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)). 

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[1] the defendant qualifies for a decrease under subsection (a), 

[2] the offense level determined prior to the operation of subsection 

(a) is level 16 or greater, and [3] upon motion of the government 

stating that the defendant has assisted authorities in the

investigation or prosecution of his own misconduct by timely 

notifying authorities of his intention to enter a plea of guilty, 

thereby permitting the government to avoid preparing for trial and 

permitting the government and the court to allocate their 

resources efficiently[.]

Amendment 775 to the Sentencing Guidelines, which became effective in 

November 2013, states that “[t]he government should not withhold such a 

motion based on interests not identified in § 3E1.1, such as whether the 

defendant agrees to waive his or her right to appeal.”21

Before Amendment 775 took effect, panels of this court routinely 

affirmed the denial of a one-level reduction under § 3E1.1(b) when the 

government had to prepare for a suppression hearing.22 It is now unclear, 

however, “to what extent [Amendment 775] was meant to reject our 

previous rule that a suppression hearing may justify withholding a Section 

3E1.1(b) reduction.”23

We need not determine as a general matter whether, in light of 

Amendment 775, the government may withhold a § 3E1.1(b) motion when, as 

 

21 U.S. SENTENCING GUIDELINES MANUAL § 3E1.1 cmt. n.6 (U.S. SENTENCING COMM’N

2014); United States v. Palacios, 756 F.3d 325, 326 (5th Cir. 2014) (per curiam).

22 United States v. Delaurier, 237 F. App’x 996, 998 (5th Cir. 2007) (per curiam)

(concluding that the district court did not err in denying the defendant a third point for 

acceptance of responsibility under § 3E1.1(b) because “the government was forced to spend 

considerable time and effort defending the motion to suppress, and the defendant has not 

demonstrated an improper motive behind the decision”); United States v. Cruz, 199 F.3d 438 

(5th Cir. 1999) (per curiam) (“Because Santa Cruz did not enter his guilty plea until after the 

district court held a hearing on his motion to suppress evidence, which required full 

preparation of the Government and the allocation of the district court’s resources, the district 

court did not err in denying an additional one-point reduction for acceptance of responsibility 

under § 3E1.1(b)[.]”); see also United States v. Gonzales, 19 F.3d 982, 984 (5th Cir. 1994) (per 

curiam).

23 United States v. Pena-Gonzalez, 618 F. App’x 195, 201 (5th Cir. 2015) (per curiam).

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here, the defendant files and litigates a motion to suppress. This is because 

Silva’s motion precluded the government and the sentencing court 

from “allocat[ing] their resources efficiently,” a concern central to § 3E1.1.24 In 

his motion to suppress, Silva maintained that the wooden compartment in

which officers found the firearm, ammunition, and body armor was locked. He 

specifically stated that the officers “gained access to the locked compartment 

by prying open the hinges[.]” Silva argued that the “officers could not have 

reasonable [sic] believed a person could be hiding or pose a threat in a locked

compartment.” At the hearing, both Tamez and the law enforcement officer 

who took photos of the compartment testified that the compartment was not 

locked. Silva presented no evidence to the contrary and did not aver at any 

point during the hearing that the compartment was locked. As a result, the 

district court properly concluded that the compartment was not locked.

At Silva’s sentencing hearing, the government opposed his request for a 

§ 3E1.1(b) reduction because, it contended, “the entire basis [of] and all the 

allegations contained in the motion to suppress were falsified.” The 

government noted that Silva’s attorney had even presented a photograph of a 

compartment with a lock on it to support its motion. Silva’s attorney did not 

contest that he had shown photographs indicating that the compartment at 

issue was locked, but he stated only that “those photos were never 

actually introduced into evidence” and that Silva’s family provided him with 

those photos.

Because Silva’s motion was based on the false claim that the 

compartment was locked, the district court did not err in denying Silva’s 

 

24 U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(b) (U.S. SENTENCING COMM’N

2014).

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request for an additional reduction under § 3E1.1(b).25 Silva’s motion “forced 

the government and the district court to allocate resources they would not have 

been required to allocate” if he had not falsely represented that the 

compartment was locked, a consideration underlying § 3E1.1.26

III.

CONCLUSION

The denial of Silva’s motion to suppress and the sentence imposed 

following his guilty plea are AFFIRMED.

 

25 Cf. Castillo, 779 F.3d at 325 (holding that when “the defendant has a good faith

dispute as to the accuracy of the factual findings in the PSR, it is impermissible for the 

government to refuse to move for a reduction under § 3E1.1(b) simply because the defendant 

requests a hearing to litigate the dispute” (emphasis added)).

26 See United States v. Membrides, 570 F. App’x 859, 860–61 (11th Cir. 2014) (per 

curiam).

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