United States v. Rodriquez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 04-30397

v.  D.C. No.

GINO GONZAGA RODRIQUEZ, CR-03-00142-RHW

Defendant-Appellant.



UNITED STATES OF AMERICA,  No. 04-30494

Plaintiff-Appellant,

v.  D.C. No.

CR-03-00142-RHW

GINO GONZAGA RODRIQUEZ,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of Washington

Robert H. Whaley, District Judge, Presiding

Argued and Submitted

January 23, 2006—Seattle, Washington

Filed October 5, 2006

Before: Johnnie B. Rawlinson and Richard R. Clifton,

Circuit Judges, and Consuelo B. Marshall,*

Senior District Judge.

Opinion by Judge Rawlinson

*The Honorable Consuelo B. Marshall, Senior United States District

Judge for the Central District of California, sitting by designation.

17293

UNITED STATES v. RODRIQUEZ 17297

COUNSEL

Lana C. Glenn, Spokane, Washington, for appellant/cross-

appellee Gino Gonzaga Rodriquez.

Joseph H. Harrington, Assistant United States Attorney, Spo-

kane, Washington, for appellee/cross-appellant United States.

OPINION

RAWLINSON, Circuit Judge:

A jury convicted Gino Rodriquez of being a felon in pos-

session of a firearm. On appeal, he argues that the district

court erred in denying his motion to suppress the firearm

because consent to search was not voluntary. He also con-

tends that there was insufficient evidence to support his con-

viction. On cross-appeal, the government maintains that the

district court erroneously concluded that Rodriquez’s prior

drug convictions do not qualify as predicate offenses under

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

§ 924(e)(1). We conclude that the search was conducted pur-

suant to a valid consent; there was sufficient evidence to sup-

port the jury’s finding that Rodriquez possessed the firearm;

and the district court — relying on United States v. Corona-

Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc) — correctly

held that Rodriquez’s prior drug convictions do not qualify as

predicate offenses under the ACCA. We therefore affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Gino Rodriquez has several felony convictions in Washing-

ton State, including three convictions for delivery of a con-

17298 UNITED STATES v. RODRIQUEZ

trolled substance. Rodriquez served his time and, upon his

release, was placed on a term of community supervision, from

which he absconded. He was subsequently placed on “escape

status,” and four warrants were issued for his arrest. His

whereabouts were unknown until April 2003, when law

enforcement officers located and arrested him.

Rodriquez was staying with Tammi Putnam in apartment

36 of an apartment complex in Spokane, Washington.

Rodriquez had a key to the apartment, had access to the entire

apartment, had his belongings there, and received mail there.

Rodriquez and Tammi resided with Tammi’s daughter and

teenaged son, Zachary.

In March 2003, Zachary’s friend, William Packer, spoke to

Rodriquez about “getting rid” of a gun. Rodriquez told Packer

that he could “get rid” of it. Packer brought the gun to the

apartment for Rodriquez. Rodriquez looked at the gun,

grabbed it with his shirt, pulled the gun out of the sleeve and

replaced it. Rodriquez kept the gun, telling Packer that he

would try to sell it. Zachary later observed Rodriquez in the

apartment with the gun on a table. When Zachary asked about

the gun, Rodriquez stated that he was “getting rid of it.”

Meanwhile, a joint fugitive task force was looking for

Rodriquez and conducting surveillance of Deanna Torgeson,

whom the task force had learned was visiting Rodriquez on a

regular basis. In April 2003, task force officers followed Tor-

geson to the apartment complex where Rodriquez resided.

They observed Torgeson talking to Rodriquez right outside

the rear, open door of apartment 36, while Rodriquez was eat-

ing a bowl of cereal.

Spokane County Sheriff Deputy Kris Thompson arrested

Rodriquez pursuant to four outstanding warrants for his arrest.

Deputy Thompson found a bag of heroin and approximately

$900 dollars in cash when Rodriquez was searched. After

Deputy Thompson administered the Miranda warnings, which

UNITED STATES v. RODRIQUEZ 17299

Rodriquez waived, Rodriquez denied living in apartment 36.

Rodriquez also made other statements that, according to Dep-

uty Thompson, “didn’t quite match up,” including conflicting

stories about how he arrived at the apartment.

At this point, Tammi arrived on the scene. When Deputy

Thompson asked her whether she lived in apartment 36 and

whether she knew Rodriquez or Torgeson, she responded that

she did not live in that apartment, she did not know Rodriquez

or Torgeson, and she was at the complex to pick up her child.

She then entered apartment 35.

After conversing with the resident of apartment 35, Deputy

Thompson discovered that Tammi had not been forthright. He

confronted Tammi with her earlier statements, which she con-

fessed were false. He advised her that “it was a criminal

offense to make a false or misleading statement to a public

servant.” During the course of their conversation, she seemed

“nervous” and “upset.” Deputy Thompson explained that

Rodriquez had been arrested and told Tammi that a warrant

could be obtained to search the apartment, in which case the

apartment would be secured to ensure the integrity of its con-

tents. Alternatively, she could consent to a search. Deputy

Thompson informed Tammi that she had the right to refuse to

consent and read to her a search consent card, which she

reviewed, signed, and dated. Upon receiving her consent, the

officers searched the apartment, where they discovered the

gun underneath a couch.

Rodriquez was charged with being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g). He moved to

suppress evidence seized during the search, asserting that

Tammi’s consent was not voluntary. The district court denied

the motion, and Rodriquez was convicted by a jury.

Rodriquez also objected to the government’s request that

the judge enhance his sentence under the ACCA. He con-

tended that his two prior burglary convictions and three prior

17300 UNITED STATES v. RODRIQUEZ

drug convictions did not qualify as predicate offenses under

the ACCA. The district court concluded that Rodriquez’s

prior burglary convictions qualified as two predicate offenses;

however, relying on Corona-Sanchez, the district court held

that the ACCA enhancement did not apply because

Rodriquez’s prior drug convictions did not qualify as predi-

cate offenses. This timely appeal and cross-appeal followed.

II

DISCUSSION

A. The Motion to Suppress Was Properly Denied

Because Tammi Putnam Voluntarily Consented to

the Search of Apartment 36

“We review de novo the district court’s denial of a suppres-

sion motion. The district court’s underlying factual finding

that a person voluntarily consented to a search is reviewed for

clear error.” United States v. Pang, 362 F.3d 1187, 1191 (9th

Cir. 2004) (citations omitted).

[1] “It is well settled that a search conducted pursuant to a

valid consent is constitutionally permissible.” United States v.

Soriano, 361 F.3d 494, 501 (9th Cir. 2004) (citation and inter-

nal quotation marks omitted). “Whether consent to search was

voluntarily given is to be determined from the totality of all

the circumstances. It is the government’s burden to prove that

the consent was freely and voluntarily given. On appeal, evi-

dence regarding the question of consent must be viewed in the

light most favorable to the fact-finder’s decision.” Id. (cita-

tions and internal quotation marks omitted).

[2] “Our cases have identified five factors to be considered

in determining the voluntariness of consent to a search. They

are: (1) whether defendant was in custody; (2) whether the

arresting officers had their guns drawn; (3) whether Miranda

warnings were given; (4) whether the defendant was notified

UNITED STATES v. RODRIQUEZ 17301

that she had a right not to consent; and (5) whether the defen-

dant had been told a search warrant could be obtained.” Id. at

502 (citations and internal quotation marks omitted). “No one

factor is determinative in the equation. It is not necessary to

check off all five factors, but many of this court’s decisions

upholding consent as voluntary are supported by at least sev-

eral of the factors. Nevertheless, these factors are only guide-

posts, not a mechanized formula to resolve the voluntariness

inquiry.” Id. (citations and internal quotation marks omitted).

[3] Based on the totality of the circumstances and after con-

sidering the applicable factors, we conclude that Tammi vol-

untarily consented to the search. As to the first factor, the

district court concluded, and Rodriquez conceded in his brief,

that Tammi was not in custody when she consented to the

search. Second, the court determined that there was no “indi-

cation that firearms were exhibited or drawn,” a conclusion

with which Rodriquez also agreed. Third, because Tammi was

not in custody, “Miranda warnings were inapposite . . .” Id.

at 504 (citation omitted). Fourth, the court found, and

Rodriquez acknowledged, that Tammi knew she had the right

to refuse consent. “Knowledge of the right to refuse consent

is highly relevant in determining whether a consent is valid.”

Id. (alteration and citations omitted). Moreover, where, as

here, “the officers themselves informed [Tammi] that she was

free to withhold her consent,” “the probability that their con-

duct could reasonably have appeared to her to be coercive” is

“substantially lessened.” United States v. Mendenhall, 446

U.S. 544, 559 (1980) (emphasis added).

[4] Fifth, Deputy Thompson told Tammi that, if she chose

not to consent, he could apply for a search warrant and secure

her apartment. A “statement indicating that a search warrant

would likely be sought and the [apartment] secured could not

have, by itself, rendered [Tammi’s] consent involuntary as a

matter of law.” United States v. Whitworth, 856 F.2d 1268,

1279 (9th Cir. 1988) (citations omitted). Rather, application

of this factor “hinges on whether [Tammi was] informed

17302 UNITED STATES v. RODRIQUEZ

about the possibility of a search warrant in a threatening man-

ner.” Soriano, 361 F.3d at 504 (citations omitted). “Even

assuming, however, that [Deputy Thompson’s statements]

were made in a threatening manner so as to imply the futility

of withholding consent, when probable cause to justify a war-

rant exists, the weight of the fifth factor is significantly dimin-

ished.” Id. at 504-05 (citations omitted).

[5] Probable cause to justify a warrant existed in this case.

“Probable cause exists when there is a fair probability or sub-

stantial chance of criminal activity. It is well-settled that the

determination of probable cause is based upon the totality of

the circumstances known to the officers at the time of the

search.” Id. at 505 (citations and internal quotation marks

omitted).

[6] Prior to the search, the officers knew the following:

Rodriquez had absconded from his supervision, and there

were four outstanding warrants for his arrest; he was found

standing right outside an open door to an apartment eating a

bowl of cereal; he denied residing at the apartment, but two

people independently confirmed that he resided there; he pro-

vided an implausible explanation for how he arrived at the

apartment; he attempted to distance himself from the apart-

ment; and he was in possession of “a considerable size chunk

of heroin” and approximately $900 dollars in cash. This col-

lection of facts implies a fair probability of criminal activity

resulting in probable cause, thereby significantly diminishing

the weight of the fifth factor. See id.

The voluntary consent analysis does not automatically end

here, however, because the five factors articulated in Soriano

are not exhaustive. Id. at 502. In addition to the five factors,

“execution of a consent form is one factor that indicates that

consent was voluntary.” United States v. Childs, 944 F.2d

491, 496 (9th Cir. 1991) (alteration and citation omitted). In

this case, Tammi executed a consent form, reinforcing the

conclusion that she voluntarily consented.

UNITED STATES v. RODRIQUEZ 17303

[7] In sum, the totality of the circumstances in this case

leads us to conclude that the district court’s finding that

Tammi voluntarily consented to the search was not clearly

erroneous. We therefore affirm the district court’s denial of

Rodriquez’s motion to suppress.

B. There Was Sufficient Evidence to Support the

Jury’s Finding that Rodriquez Possessed the

Firearm

“When reviewing convictions for sufficiency of the evi-

dence, we must determine whether, after viewing the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Sanders,

421 F.3d 1044, 1049 (9th Cir. 2005) (emphasis in the origi-

nal) (citation and internal quotation marks omitted).

The evidence in the record reflects that Packer asked

Rodriquez whether Rodriquez could “get rid” of the gun for

him. Rodriquez responded that he could. Packer brought the

gun to Rodriquez, who looked at the gun and handled it. After

telling Packer that he would try to sell it, Rodriquez kept the

gun. Zachary later observed Rodriquez in the apartment with

the gun on a table. When Zachary asked about the gun,

Rodriquez stated that “he was getting rid of it.”

[8] The evidence also supports a reasonable inference that

Rodriquez resided in the apartment in which the gun was dis-

covered: officers observed Rodriquez standing outside an

open door to the apartment eating a bowl of cereal; although

he denied residing in the apartment, two people independently

confirmed that he resided there; he had a key to the apart-

ment; he had access to the entire apartment; he had belong-

ings in the apartment; and officers found mail sent to

Rodriquez at the apartment’s address.1

1

The fact that the gun was located under the couch “where numerous

individuals had access and control” does not establish that Rodriquez did

17304 UNITED STATES v. RODRIQUEZ

[9] We conclude that the evidence at trial, viewed in the

light most favorable to the prosecution, could lead a rational

trier of fact to find beyond a reasonable doubt that Rodriquez

possessed the firearm. See United States v. Garcia-Cruz, 978

F.2d 537, 542 (9th Cir. 1992) (holding that the defendant’s

sole admission that he had “the gun dropped off to [him] to

pick up” was sufficient evidence of possession).

C. Corona-Sanchez Forecloses Use of Rodriquez’s

Prior Drug Convictions as Predicate Offenses

Under the ACCA

We review de novo whether a prior conviction “may be

used for purposes of enhancement under the ACCA . . .”

United States v. Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998).

[10] Under the ACCA, a person who violates 18 U.S.C.

§ 922(g) and has three prior convictions for a “violent felony”

or a “serious drug offense” is subject to a mandatory mini-

mum sentence of fifteen years. 18 U.S.C. § 924(e)(1). One

definition of a serious drug offense is “an offense under State

law, involving manufacturing, distributing, or possessing with

intent to manufacture or distribute, a controlled substance . . .

for which a maximum term of imprisonment of ten years or

more is prescribed by law . . .” 18 U.S.C. § 924(e)(2)(A)(ii)

(emphasis added).

Rodriquez was previously convicted of three drug offenses

in violation of Washington Revised Code § 69.50.401, the

maximum penalty for which is five years’ imprisonment.

not have possession of it; the evidence still reasonably supports the infer-

ence that he did. Rodriquez provided an implausible explanation for how

he arrived at the apartment, denied living in the apartment, and stated that

“he didn’t have any belongings in apartment #36,” all of which could lead

a rational trier of fact to conclude beyond a reasonable doubt that he was

attempting to distance himself from the apartment because he was aware

that he had put the gun under the couch.

UNITED STATES v. RODRIQUEZ 17305

Wash. Rev. Code § 9A.20.021(1)(c). However, if a person is

convicted of “a second or subsequent offense,” the maximum

penalty is ten years. Wash. Rev. Code § 69.50.408(1). The

question, then, is whether the district court should consider

the maximum penalty as provided in the five-year statute of

conviction (which would not trigger the ACCA enhance-

ment), or consider the maximum ten-year penalty resulting

from the recidivism provision (which would trigger the

ACCA enhancement).2 The district court correctly applied our

decision in Corona-Sanchez, concluding that it could consider

only the five-year maximum penalty provided in the statute of

conviction.

In Corona-Sanchez, we considered a similar issue: whether

a defendant’s prior conviction for petty theft under California

Penal Code § 484(a) qualified as an “aggravated felony.” 291

F.3d at 1208. To qualify as an aggravated felony, the term of

imprisonment for the theft offense had to be at least one year.

Id. On the face of California Penal Code § 484(a), the maxi-

mum possible sentence was six months. Id. However, the

defendant “actually received a two year sentence . . . due to

the application of California Penal Code § 666, which pro-

vides a sentence enhancement for recidivists.” Id.

[11] In deciding Corona-Sanchez, we followed the “famil-

iar analytical model constructed by the Supreme Court in Tay-

lor v. United States, 495 U.S. 575, [600] (1990).” Id. at 1203.

For federal sentencing enhancement purposes, when we con-

sider the prison term imposed for a prior offense, “we must

consider the sentence available for the crime itself, without

considering separate recidivist sentencing enhancements.”3 Id.

2

Neither party challenges the district court’s determination that

Rodriquez’s two prior burglary convictions qualify as two predicate

offenses under the ACCA. The only issue is whether Rodriquez’s prior

drug convictions qualify as predicate offenses.

3

In general, federal courts apply this categorical approach to decide

whether a defendant’s prior conviction qualifies as a particular type of

17306 UNITED STATES v. RODRIQUEZ

at 1209 (reiterating that the court must examine the crime

itself, “rather than any sentencing enhancements”); see also

United States v. Moreno-Hernandez, 419 F.3d 906, 910 (9th

Cir. 2005) (stating that, in Corona-Sanchez, the court held

that “the substantive offense is to be considered independently

of any recidivist sentencing enhancement.”), cert. denied, 126

S. Ct. 636 (2005). We observed that this conclusion “is con-

sistent with the Supreme Court’s historic separation of recidi-

vism and substantive crimes. As the Court bluntly put it,

‘recidivism does not relate to the commission of the

offense.’ ” Corona-Sanchez, 291 F.3d at 1209 (citations omit-

ted).

[12] The rationale articulated in Corona-Sanchez applies

equally in this case,4 dictating the conclusion that the district

court could consider only the maximum penalty as provided

in the five-year statute of conviction, and not the maximum

ten-year penalty resulting from the recidivism provision.

The government attempts to distinguish Corona-Sanchez

on several bases, none of which are persuasive. The govern-

ment first posits that, unlike Corona-Sanchez, where the petty

theft statute (Cal. Penal Code § 484) and the recidivism provi-

sion (Cal. Penal Code § 666) were “wholly separate,” the stat-

predicate offense (e.g., an “aggravated felony” or a “serious drug

offense”), which, in turn, determines whether the defendant will receive

an enhanced sentence. To decide whether a prior conviction counts as a

particular type of predicate offense under the categorical approach, “fed-

eral courts do not examine the facts underlying the prior offense, but look

only to the fact of conviction and the statutory definition of the prior

offense.” Corona-Sanchez, 291 F.3d at 1203 (emphasis added) (citation

and internal quotation marks omitted). In Corona-Sanchez, we concluded

that the categorical approach required us to “separate the recidivist

enhancement from the underlying offense” and “consider the sentence

available for the crime itself . . .” Id. at 1209-10.

4

“We apply the categorical approach in a variety of sentencing con-

texts.” United States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006) (cita-

tion and internal quotation marks omitted).

UNITED STATES v. RODRIQUEZ 17307

utes in this case “are both in the same article . . . and are

codified in fairly close proximity . . .” However, this distinc-

tion is not convincing because, in Corona-Sanchez, we con-

cluded that “we must separate the recidivist enhancement

from the underlying offense.” Corona-Sanchez, 291 F.3d at

1210. We “must consider the sentence available for the crime

itself, without considering separate recidivist sentencing

enhancements.” Id. at 1209. We observed that our conclusion

is consistent with, and based on, the Supreme Court’s historic

separation of substantive crimes and recidivism, pertinent leg-

islative history, and our own cases distinguishing between

substantive offenses and recidivist sentencing enhancement

statutes. Id. This rationale applies regardless of where the

recidivist provision is located in the statutory framework. Cf.

United States v. Arellano-Torres, 303 F.3d 1173, 1178 (9th

Cir. 2002) (relying on Corona-Sanchez to disregard a sentenc-

ing enhancement located in the same section as the substan-

tive offense).5

The government next argues that, in Corona-Sanchez, the

issue was whether the defendant’s prior conviction was for a

“theft offense . . . for which the term of imprisonment is at

least one year.” Corona-Sanchez, 291 F.3d at 1204 (alteration,

citation, and footnote reference omitted). The “theft offense”

language, the government continues, suggests that Congress

sought to include “only the punishment imposed for the theft

offense itself.” In contrast, according to the government, the

issue in this case is whether Rodriquez’s prior drug convic-

tions were for “an offense . . . involving manufacturing, dis-

tributing, or possessing with intent to manufacture or

distribute, a controlled substance . . .” 18 U.S.C.

§ 924(e)(2)(A)(ii) (emphasis added). The government con-

tends that the language defining drug offenses is “more

expansive and encompasses recidivist offenses . . .”

5

The government concedes that “the logic of Corona-Sanchez does not

appear to be confined to separately codified sentencing schemes . . .”

17308 UNITED STATES v. RODRIQUEZ

The government’s reliance on the “theft offense” character-

ization is misplaced, however, because Corona-Sanchez did

not rely on or attach any particular significance to that term.

Rather, Corona-Sanchez focused on the term of imprisonment

for the theft offense in determining whether a conviction for

theft qualified as an aggravated felony. See 291 F.3d at 1208.

By urging us to conclude that the term “involving” is so

broad as to “encompass[ ] recidivist offenses,” the govern-

ment is, in effect, contending that the drug offenses should be

interpreted as subsuming corollary recidivism enhancements.

That interpretation would effectively render “offense” and

“sentencing enhancements” coterminous, a result that is fore-

closed by Supreme Court precedent. See Apprendi v. New Jer-

sey, 530 U.S. 466, 488, 496 (2000) (“[R]ecidivism does not

relate to the commission of the offense.”) (internal quotation

marks omitted); see also Rusz v. Ashcroft, 376 F.3d 1182,

1185 (9th Cir. 2004) (“[S]entence enhancements . . . do not

describe substantive criminal offenses . . .”) (internal quota-

tion marks omitted) (citing Corona-Sanchez, 291 F.3d at

1211); Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir.

2002) (per curiam) (holding that California Vehicle Code

§ 23175 [now § 23550, which provides an enhanced penalty

for successive convictions for driving under the influence of

alcohol,] “is an enhancement statute; it does not alter the ele-

ments of the underlying offense.”) (citation omitted).

Finally, the government postulates that Corona-Sanchez

applies only where the underlying offense is a misdemeanor

and applying the recidivism provision would transform the

misdemeanor into a felony. Because Rodriquez’s prior drug

offenses are already felonies, the government maintains,

Corona-Sanchez does not apply, and the district court should

have considered the maximum penalty applying the recidi-

vism provision.

We disagree. Corona-Sanchez applies irrespective of the

nature of the underlying crime of which a defendant is con-

UNITED STATES v. RODRIQUEZ 17309

victed. In Corona-Sanchez, we held that “a crime may be

classified as an ‘aggravated felony’ . . . without regard to

whether, under state law, the crime is labeled a felony or a

misdemeanor.” 291 F.3d at 1210 (emphasis in the original).

In so holding, we agreed with our sister circuits that “it is

irrelevant whether the state labels the underlying crime ‘mis-

demeanor’ or ‘felony’ . . . . The relevant question is whether

the crime meets the definition of an ‘aggravated felony’ under

federal sentencing law.” Id. (citation and footnote reference

omitted).

Likewise, Rodriquez’s three convictions for delivery of a

controlled substance may be classified as “serious drug

offenses” “without regard to whether, under state law, the

crime is labeled a felony or a misdemeanor.” Id. As articu-

lated in Corona-Sanchez, “it is irrelevant” whether

Rodriquez’s underlying crimes are misdemeanors or felonies;

the relevant question is whether his prior drug offenses meet

the definition of a “serious drug offense.” Id. Under Corona-

Sanchez, whether application of a recidivism enhancement

would transform a misdemeanor into a felony is simply of no

import.

However the government frames its argument, the essence

of its request is that we consider the offense and the sentenc-

ing enhancement together. But that is precisely what is forbid-

den by Corona-Sanchez and its progeny. See Moreno-

Hernandez, 419 F.3d at 911 (“Corona-Sanchez explained the

cleaving of the recidivist enhancement from the underlying

offense largely on the basis that the enhancement was mea-

sured by recidivism. Following the Supreme Court’s reitera-

tion . . . that ‘recidivism does not relate to the commission of

the offense,’ the en banc court regarded petty theft as a single,

substantive offense, as to which various sentencing alterna-

tives were available depending on the defendant’s past crimi-

nal history.”) (citations and emphasis omitted).

17310 UNITED STATES v. RODRIQUEZ

[13] In sum, the government’s distinctions cannot over-

come the language in, or the rationale of, Corona-Sanchez.

Based on Corona-Sanchez, the district court properly con-

cluded that it could consider only the five-year maximum

penalty provided in the statute of conviction. Because

Rodriquez’s prior drug convictions do not qualify as predicate

offenses under the ACCA, the district court correctly declined

to apply that enhancement.6

III

CONCLUSION

Because Tammi Putnam voluntarily consented to the search

of apartment 36, the motion to suppress the firearm was prop-

erly denied. There was sufficient evidence presented during

trial to enable a rational jury to conclude beyond a reasonable

doubt that Rodriquez possessed the firearm. Corona-Sanchez

applies in this ACCA case, dictating the conclusion that

Rodriquez’s prior drug convictions do not qualify as predicate

offenses under the ACCA.

AFFIRMED.

6

We recognize that this conclusion is in conflict with the Seventh Cir-

cuit’s decision in United States v. Henton, 374 F.3d 467, 469-70 (7th Cir.

2004), cert. denied, 543 U.S. 967 (2004), and in tension with the Fifth Cir-

cuit’s decision in Mutascu v. Gonzales, 444 F.3d 710, 712 (5th Cir. 2006)

(per curiam), and the Fourth Circuit’s decision in United States v. Wil-

liams, 326 F.3d 535, 539 (4th Cir. 2003). Nevertheless, Corona-Sanchez

is binding Ninth Circuit precedent and dictates the conclusion we reach.