In the

United States Court of Appeals

For the Seventh Circuit

Nos. 13-1353 & 13-1441

UNITED STATES OF AMERICA,

Plaintiff-Appellee/Cross-Appellant,

v.

JUAN M. GONZALEZ-RUIZ,

Defendant-Appellant/Cross-Appellee.

Appeals from the United States District Court 

for the Western District of Wisconsin.

No. 12-cr-28-wmc — William M. Conley, Chief Judge. 

ARGUED APRIL 2, 2014 — DECIDED JULY 24, 2015

Before EASTERBROOK, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Juan M. Gonzalez-Ruiz was charged

with possessing a firearm as a felon after police in Fitchburg,

Wisconsin, found two handguns in his car during a routine

traffic stop. He moved to suppress the guns, but the district

court denied the motion, finding that he consented to the
2 Nos. 13-1353 & 13-1441

search. Gonzalez-Ruiz then entered a conditional guilty plea,

reserving the right to appeal the denial of suppression.

At sentencing the government sought an enhanced penalty

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), based on Gonzalez-Ruiz’s criminal history. His record

includes convictions for aggravated assault, aggravated

battery, possession of a sawed-off shotgun, and conspiracy to

commit armed robbery. Gonzalez-Ruiz conceded that the first

two crimes qualify as violent felonies under the ACCA, and

we’ve held that the third does not. See United States v. Miller,

721 F.3d 435 (7th Cir. 2013). The government argued that

conspiracy to commit armed robbery is a violent felony under

the “residual clause” of the ACCA, see 18 U.S.C.

§ 924(e)(2)(B)(ii), so that conviction counts as the third predicate for purposes of the Act. The judge disagreed and imposed

a guidelines term of 37 months.

Gonzalez-Ruiz appealed, challenging the denial of his

suppression motion. The government cross-appealed seeking

resentencing under the ACCA. We put the case on hold to

await the Supreme Court’s decision in Johnson v. United States,

which affects the government’s cross-appeal. That decision is

now in; the Court held that the residual clause is unconstitutionally vague. See Johnson v. United States, 135 S. Ct. 2552, 2563

(2015). Accordingly, the government has moved to dismiss the

cross-appeal. That motion is granted. On the remaining issue,

we find no error in the district court’s denial of suppression.

From the perspective of a reasonable officer, Gonzalez-Ruiz’s

words and actions during the traffic stop manifested his

consent to search.
Nos. 13-1353 & 13-1441 3

I. Background

At about 3 a.m. on October 19, 2011, Sergeant Matthew

Laha of the Fitchburg Police Department stopped GonzalezRuiz after a license-plate check of his car revealed that his

driver’s license was suspended. As Laha initiated the stop,

Officer Peter Johnson arrived on the scene to assist. Much of

the traffic stop was captured by a dash-mounted video camera

in Laha’s patrol vehicle and by his lapel microphone.

Laha approached the driver’s side door and questioned

Gonzalez-Ruiz, then returned to his squad to write a ticket.

While he filled out the ticket, Laha told Johnson that he

intended to ask Gonzalez-Ruiz for consent to search his car.

When Laha finished writing the ticket, he and Johnson walked

back to Gonzalez-Ruiz’s car and asked him to step out. Laha

explained the ticket and asked if Gonzalez-Ruiz had any

questions. Gonzalez-Ruiz said, “no,” and Laha told him,

“You’re free to go, my man.”

As all three men began walking back to their vehicles, Laha

suddenly spun around and called out, “Hey Juan!” GonzalezRuiz answered, “Yeah?” and Laha asked, “You don’t have any

weapons, drugs, anything like that?” Gonzalez-Ruiz replied,

“Oh? No, no. I just, I just left my house.” Laha then asked,

“Mind if I search? Mind if I take a look?” Gonzalez-Ruiz

responded, “You can, you can ... yeah,” then closed his car

door, walked to the rear of his vehicle, and opened his jacket.

Laha did a quick pat-down search and continued to question

Gonzalez-Ruiz: “Nothin’ in your car that you’re concerned

about?” Gonzalez-Ruiz did not respond.
4 Nos. 13-1353 & 13-1441

A few moments later, Gonzalez-Ruiz took out his cell

phone and asked if he could call his wife, Camille Vasquez, to

have her pick him up.1 Laha replied, “Absolutely!” As Laha

finished the frisk, Gonzalez-Ruiz called Vasquez and began

talking with her in both English and Spanish.

Laha then walked to the side of Gonzalez-Ruiz’s car and

asked again if he could search it: “Nothing in your car that I

should be concerned about? Mind if I take a look?” GonzalezRuiz was speaking quietly on his phone at this point; Laha’s

microphone did not pick up what he was saying. Immediately

after Laha asked this question,however,Gonzalez-Ruiz looked

up at Laha and responded in a louder voice, “I guess,” then

raised his right hand and nodded in affirmation. Laha asked

again, “So we’re good?” Gonzalez-Ruiz did not respond.

Johnson then directed him toward the curb as Laha started the

search. Gonzalez-Ruiz did not object when he saw Laha open

the driver’s-side door to begin the search. Within ten seconds,

Laha found two handguns and ammunition underthe driver’s

seat.

Gonzalez-Ruiz was indicted for possessing a firearm as a

felon. See 18 U.S.C. § 922(g)(1). He moved to suppress the guns,

arguing that he did not consent to the search of his car. He

explained in the motion that when he said “I guess,” he was

not consenting to the search but instead was responding to a

question Vasquez asked him over the phone: “Should I come

and pick you up now?” At the suppression hearing, Vasquez

1 Testimony at the suppression hearing clarified that Vasquez and

Gonzalez-Ruiz have children together but are not married.
Nos. 13-1353 & 13-1441 5

testified to that effect. Gonzalez-Ruiz did not testify. The

government presentedtestimony from both Laha and Johnson.

The officers said that Gonzalez-Ruiz’s response of “I guess”

was directed at Laha’s question about searching the car.

Based on this testimony and a review of the video and

audio recordings of the stop, a magistrate judge found the

officers’ testimony credible and supported by the recordings.

Accordingly, the magistrate judge recommended that the

district court deny suppression. The district judge adopted the

magistrate judge’s report andrecommendation and denied the

motion to suppress.

Gonzalez-Ruiz then entered a conditional guilty plea

pursuant to a plea agreement, reserving the right to appeal the

denial of the suppression motion. At sentencing the government argued that Gonzalez-Ruiz should be sentenced as an

armed career criminal under the ACCA based on four prior

convictions: a Puerto Rico conviction for aggravated assault; a

Wisconsin conviction for aggravated battery; and Massachusetts convictions for possession of a sawed-off shotgun and

conspiracy to commit armed robbery.Gonzalez-Ruiz conceded

that the first two convictions are ACCA predicates but argued

that the Massachusetts convictions are not. Applying Begay v.

United States, 553 U.S. 137 (2008), the judge concluded that

neither crime qualified as a “violent felony” underthe ACCA’s

residual clause. Without theACCAenhancement, the advisory

imprisonment range underthe sentencing guidelines was 30 to

37 months. The judge imposed a term of 37 months. 

As contemplated by the plea agreement, Gonzalez-Ruiz

appealed the denial of suppression. The government cross-
6 Nos. 13-1353 & 13-1441

appealed seeking review of the judge’s decision not to apply

the ACCA’s enhanced penalty.

II. Discussion 

Gonzalez-Ruiz challenges the district court’s conclusion

that the warrantless search of his car was valid because he

consented to it. See, e.g., Fernandez v. California, 134 S. Ct. 1126,

1131–32 (2014) (noting that the Fourth Amendment generally

requires a warrant to search, but consent is an exception);

United States v. Jackson, 598 F.3d 340, 346 (7th Cir. 2010) (same).

Whether consent was given is a factual issue that we review for

clear error. United States v. $304,980.00 in U.S. Currency,

732 F.3d 812, 819 (7th Cir. 2013). “The consent inquiry focuses

on what is reasonably apparent to a reasonable inquiring

officer so as to furtherthe deterrence rationale of the exclusionary rule.” Id. (internal quotation marks omitted). As for the

district court’s credibility determinations, we will only reject

them if they are completely without foundation. United States

v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012). 

We don’t see any error in the district court’s findings on

consent. Gonzalez-Ruiz’s argument for suppression rested

largely on Vasquez’s testimony—more specifically, her claim

that when Gonzalez-Ruiz said “I guess,” he was really responding to her question about picking him up and not to

Laha’s request for permission to search. But Vasquez wasn’t

present at the scene, and the officers who were there testified

that his verbal response “I guess” came in reply to Laha’s

request for consent to search and was accompanied by a wave
Nos. 13-1353 & 13-1441 7

of the hand and a nod. The district court accepted the officers’

testimony as credible, and that determination gets substantial

deference. United States v. Williams, 209 F.3d 940, 943 (7th Cir.

2000) (explaining that the reviewing court’s deference to

credibility findings is “near absolute”). The district court also

relied on the video and audio recordings, which support the

officers’ testimony. Gonzalez-Ruiz does not question the

contents of the recordings orthe court’s interpretation of them.

Instead, he points to Laha’s unanswered question “So we’re

good?” as proof that his initial response was ambiguous. To the

extent that there was any residual ambiguity, it was eliminated

when Laha began the search and Gonzalez-Ruiz didnot object.

We faced a similar situation in United States v. Price, 54 F.3d 342

(7th Cir. 1995). There a state trooper officer asked a driver for

consent to search his car by saying, “Do you mind if I take a

look?”The driver’s response—“Sure”—was ambiguous in that

it could have meant “Sure, I mind” or “Sure, go ahead.” Id. at

346. Yet we upheld the district court’s finding of consent,

concluding that the “crucial fact” was the driver’s “failure to

protest upon learning that [the trooper] understood his

response as a consent to the search.” Id. So too here. If

Gonzalez-Ruiz did not intend to consent, Laha’s commencement of the search “was the time to make that clear.” Id.

In short, Gonzalez-Ruiz has not left us “with the definite

and firm conviction that a mistake has been committed.” Am.

Boat Co. v. United States, 583 F.3d 471, 483 (7th Cir. 2009)

(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573

(1985)). The district court did not clearly err in finding that
8 Nos. 13-1353 & 13-1441

Gonzalez-Ruiz’s words and actions manifested his consent to

the search.

In the cross-appeal, thegovernment asked us to reverse and

remand for resentencing under the ACCA, which mandates

lengthier sentences for felons who possess firearms and have

previously been convicted of three violent felonies. Compare

18 U.S.C. § 924(e)(1) (imposing a minimum of 15 years) with id.

§ 924(a)(2) (setting a maximum of 10 years). A “violent felony”

under the statute is any crime that has physical force as an

element, id. § 924(e)(2)(B)(i), or “is burglary, arson, or extortion,

involves use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another,” 

§ 924(e)(2)(B)(ii). That last portion has become known as the

“residual clause” of the ACCA. The question in this case is

whether the crime of conspiracy to commit armed robbery is a

predicate violent felony under the residual clause.2

The Supreme Court’s recent decision in Johnson forecloses

application of the ACCA. Johnson held that the residual clause

is void for vagueness and so “imposing an increased sentence

under the residual clause ... violates the Constitution’s

guarantee of due process.” 135 S. Ct. at 2562. In light of Johnson,

the government has moved to dismiss the cross-appeal. We

grant that motion and affirm the judgment.

AFFIRMED.

2

 The district court held that Gonzalez-Ruiz’s conviction for possession of

a sawed-off shotgun is not a violent felony under the residual clause,

anticipating our later decision in United States v. Miller, 721 F.3d 435 (7th

Cir. 2013).