### 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 U S D C No. 2:15

- CR

- 311

- 1

Before STEWART, Chief Judge, and J OLLY 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 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 14, 2017 Lyle W. Cayce Clerk Case: 16-40167 Document: 00514034138 Page: 1 Date Filed: 06/14/2017No. 16

- 40167

2 I. F ACTS AND P ROCEEDINGS I n 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 tra iler to check for individuals inside. They did not have a search warrant. During the sweep, one of the marshal s 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 an d ammunition , claiming that (1) the protective sweep was neither reasonable nor permissible , and (2) alternative ly , the officers exceeded the scope of a lawful protective sweep. After conducting an extensive suppression hearing, the district court denied S ilva’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 impriso nment under

1 U.S. S ENTENCING G UIDELINES M ANUAL § 2K2.1 (U.S. S ENTENCING C OMM ’ N 2014). All refere nces to the Sentencing Guidelines are to the 2014 edition, the edition applicable to this case.

2 U.S. S ENTENCING G UIDELINES M ANUAL ch. 5, pt. A (U.S. S ENTENCING C OMM ’ N 2014). Case: 16-40167 Document: 00514034138 Page: 2 Date Filed: 06/14/2017No. 16

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3 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 a cceptance

- 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

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

suppre ss 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 respon sibility 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
E xigent 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. (quotin g 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. Case: 16-40167 Document: 00514034138 Page: 3 Date Filed: 06/14/2017No. 16

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4 person is subject ed 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 oth ers. ” 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 da nge r 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 enfo rcement 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). Case: 16-40167 Document: 00514034138 Page: 4 Date Filed: 06/14/2017No. 16

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5 officer among the team of marshals that executed the warrant, testifi ed 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 threa t. 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 i n 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, e ven 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 cond ucted the sweep with Lujan, testified that they conducted the sweep because they were concerned for the ir 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. Case: 16-40167 Document: 00514034138 Page: 5 Date Filed: 06/14/2017No. 16

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6 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 reasonab ly concerned about their safety. When we view the evidence in th e 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 dange r 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 inspectio n 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. Luja n testified that he inspected ever y crawl space in which an individua l 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 stai rwell leading into the trailer , the district court assumed for purposes of the motion that Silva was outside of t he trailer when he was arrested . Silva asserts that because his arrest occurred outside of the trailer, the warrantless search of the tr ailer was not permissible. This argument is unavailing. See United States v. Maldonado , 472 F.3d 388, 393 (5th Cir. 2006 ) (“T he protective swee p 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. Case: 16-40167 Document: 00514034138 Page: 6 Date Filed: 06/14/2017No. 16

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7 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 wood en box

. The district court concluded that, based on the agents’ testimony regarding their experience finding individuals in small and h ollowed

- out spaces, Tamez’s lifting of the mattress “was certainly justif ied” 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 1 3 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 s inks, 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 d ressers, hidden compartments in closets, underneath cl othes, 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 fail ed to demonstrate that the district court clearly erred in determining that t he 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 a nd 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 Case: 16-40167 Document: 00514034138 Page: 7 Date Filed: 06/14/2017No. 16

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8 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 fo r acceptance of responsibility under § 3E1.1(b). He maintains tha t the government improperly withheld a § 3E1.1(b) motion in retaliation for his
exercis e 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 Guidelin es 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 d is trict 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 “testi fied 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 , 34 0 F.3d 222, 227 (5th Cir. 2003) (quoting United St ates v. Maldonado , 42 F.3d 906, 913 (5th Cir. 1995)). Case: 16-40167 Document: 00514034138 Page: 8 Date Filed: 06/14/2017No. 16

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9 [1] the defendant qualifies for a decrease under subsectio n (a), [2] the offense level dete rmined 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 h is 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 c ourt 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 suppressio n hearing may justify withholding a Section 3E1.1(b) reduction.” 23
W e 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. S ENTENCING G UIDELINES M ANUAL § 3E1.1 cmt. n.6 (U.S. S ENTENCING C OMM ’ 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, 99 8 (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 defendi ng 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 curi am) (“Because Santa Cruz did not enter his guilty plea until after the district court h eld 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 responsi bility 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)

. Case: 16-40167 Document: 00514034138 Page: 9 Date Filed: 06/14/2017No. 16

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10 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] believ ed 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 conclud ed 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 wit h those photos. Because Silva’s motion was based on the false claim that the compartment was locked, the district court did not err in den ying Silva’s

24 U .S. S ENTENCING G UIDELINES M ANUAL § 3E1.1(b) (U.S. S ENT ENCING C OMM ’ N 2014)

. Case: 16-40167 Document: 00514034138 Page: 10 Date Filed: 06/14/2017No. 16

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11 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
I II

. C ONCLUSION 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 U nit ed States v. Membrides , 570 F. App’x 859, 860

– 61 (11th Cir. 2014) (per curiam). Case: 16-40167 Document: 00514034138 Page: 11 Date Filed: 06/14/2017