United States v. Travis Job

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50472

Plaintiff-Appellee,

D.C. No.

v. 3:13-cr-1128-BEN-11

TRAVIS JOB, OPINION

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted December 9, 2016

Pasadena, California

Filed March 14, 2017

Before: A. Wallace Tashima and Richard A. Paez, Circuit

Judges, and Paul L. Friedman, * District Judge.

Opinion by Judge Friedman

*

The Honorable Paul L. Friedman, United States District Judge for

the District of Columbia, sitting by designation.

2 UNITED STATES V. JOB

SUMMARY **

Criminal Law

The panel affirmed in part, vacated in part, and remanded

in a case in which the defendant was convicted of conspiracy

to distribute methamphetamine and possession of

methamphetamine with intent to distribute.

The panel held that the district court erred in denying the

defendant’s motions to suppress evidence found during

searches of his person, car, and home solely on the basis that

the defendant, who was on probation for a nonviolent

offense, was subject to a Fourth Amendment search waiver

at the time of the searches. The panel explained that a Fourth

Amendment search waiver cannot provide a justification for

a search of a probationer where the officers were unaware of

the waiver before they undertook the search. The panel

rejected the government’s arguments that the search of the

defendant’s person was justified as a valid Terry stop and

frisk, or as a valid protective sweep. The panel rejected the

government’s arguments that the search of the defendant’s

car was justified by the automobile exception to the warrant

requirement, or by the officers’ discovery of the Fourth

Amendment search waiver where the government did not

prove by a preponderance of the evidence that the officers

knew about the search waiver before searching the car. The

panel held that the search of the defendant’s home was

conducted pursuant to a valid search warrant.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

UNITED STATES V. JOB 3

The panel concluded that the district court’s failure to

suppress the unlawfully seized evidence was harmless as to

the conspiracy conviction, but could not conclude beyond a

reasonable doubt that the evidence did not contribute to the

jury’s verdict on the possession-with-intent-to-distribute

count.

The panel held that the district court did not err in

refusing to give a multiple conspiracies instruction.

The panel held that the district court did not make

explicit findings, as required by Fed. R. Crim. P. 32, to

resolve disputes regarding the sufficiency of the evidence to

support offense level increases at sentencing for importation

of methamphetamine (U.S.S.G. § 2D1.1(b)(5)), maintaining

a premises for the purpose of manufacturing or distributing

a controlled substance (U.S.S.G. § 2D1.1(b)(12)), and

unlawful discharge of a toxic substance (U.S.S.G.

§ 2D1.1(b)(13)(A)). The panel declined to adopt the

government’s proffered reading of § 2D1.1(b)(5) that would

dispense with the requirement that the defendant actually

knew the drugs were imported. The panel held that the

government did not meet its burden of proving that the

defendant maintained a premises for the primary purpose of

manufacturing or distributing methamphetamine, and

concluded that the government did not meet its burden of

proving the facts necessary to support the increase under

§ 2D1.1(b)(13)(A).

4 UNITED STATES V. JOB

COUNSEL

Todd W. Burns (argued), Burns and Cohan, San Diego,

California, for Defendant-Appellant.

Mark R. Rehe (argued), Assistant United States Attorney;

Laura E. Duffy, United States Attorney; Peter Ko, Assistant

United States Attorney, Chief, Appellate Section, Criminal

Division; United States Attorney’s Office, San Diego,

California; for Plaintiff-Appellee.

OPINION

FRIEDMAN, District Judge:

Travis Job appeals from his conviction after a jury trial

on two drug-related offenses: (1) conspiracy to distribute

methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 846, and (2) possession of methamphetamine

with intent to distribute, in violation of 21 U.S.C.

§ 841(a)(1), and his sentence of 365 months, followed by a

lifetime of supervised release. He argues that the district

court erred by denying his motions to suppress evidence

found during searches of his person, car, and home. He also

argues that the district court erred when it denied his requests

for jury instructions on the lesser included offense of simple

possession and on multiple conspiracies. He contends that

the district court erred when calculating his guidelines

sentencing range when it applied: (1) a two-level increase

for an offense involving the importation of

methamphetamine under United States Sentencing

Guidelines (“U.S.S.G.”) § 2D1.1(b)(5), (2) a two-level

increase for an offense in which the defendant maintained a

premises for the purpose of manufacturing or distributing a

UNITED STATES V. JOB 5

controlled substance under § 2D1.1(b)(12), and (3) a two-

level increase for an offense involving an unlawful discharge

of a toxic substance under § 2D1.1(b)(13)(A). Finally, he

argues that his sentence of 365 months is substantively

unreasonable.

We have jurisdiction under 28 U.S.C. § 1291; we affirm

Job’s conviction in part, vacate it in part, and remand for

further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from an investigation into a conspiracy

involving the importation of methamphetamine from

Mexico and its distribution in San Diego County and South

Carolina. The conspiracy was led by Job’s codefendant at

trial, Robert Rodriguez. The government alleged that Job

served two roles within the conspiracy. Rodriguez fronted

methamphetamine to Job for sale to third parties, meaning

that drugs were provided to Job on the promise that he would

pay Rodriguez later, after the drugs were sold. In addition,

Job “cut” methamphetamine for Rodriguez and Carrie

Brown-Rodriguez, Rodriguez’s wife. Cutting refers to

adding another product to pure methamphetamine to add

more weight to it and increase the quantity available for

resale.

On October 3, 2012, the police arrested Job for

possession of a controlled substance for sale and possession

of drug paraphernalia after stopping him and searching his

person and his car. 1 That afternoon, Officer Nicholas

1

The facts surrounding the searches on October 3 are drawn from

the police report and Officer Nicholas Dedonato’s trial testimony. The

district court did not conduct an evidentiary hearing on the motions to

suppress.

6 UNITED STATES V. JOB

Dedonato and other officers arrived at 2504 Snowdrop Street

looking for another man, Richard Elliot, who is unrelated to

this case. Upon the officers’ arrival at the home, they saw

two men open the garage door. These men were identified

as Travis Job and William Holt, who also is unrelated to this

case. According to Officer Dedonato, both men looked

“very surprised to see the police.” Job “appeared very

nervous and was wearing a baggy shirt, which concealed his

waistband and baggy cargo shorts, with the pockets

appearing to be full of items.”

In the police report, Officer Dedonato stated that he “felt

it would be much safer for my partners and myself if I patted

Job down for weapons.” He handcuffed Job prior to the pat

down. During the pat down, he “felt a hard tube like object

with a bulbous end in [Job’s] left cargo pocket.” Based on

his training and experience, Officer Dedonato recognized the

object as an illegal glass pipe. Officer Dedonato removed

the pipe, which “contained a burnt white residue.” In Job’s

pockets, Officer Dedonato found $1450 in cash and Job’s car

keys. He then placed Job under arrest for possession of

narcotics paraphernalia.

After seizing Job’s car keys, Officer Dedonato asked Job

where he had parked his car. Job “looked around nervously

and said, ‘I don’t know.’” Officer Dedonato pressed the

unlock button on Job’s key fob, and the car in the driveway

beeped as it unlocked. Two other officers then searched

Job’s car. They found a cigarette pack containing 3.9 grams

of methamphetamine in “two Ziploc style bags” and a hand-

rolled cigarette with “Spice,” which they recognized as an

illegal street drug; another glass pipe containing burnt white

residue; and a Blackberry cell phone.

At some point during the encounter, the officers

conducted a records check, “which revealed [Job] was

UNITED STATES V. JOB 7

currently on probation with a 4th amendment waiver.”

While on probation for a state drug offense, Job was required

to “submit person, property, place of residence, vehicle,

[and] personal effects to search at any time with or without

a warrant, and with or without reasonable cause, when

required by a probation officer or other law enforcement

officer.” It is unclear when, if ever, the officers learned the

precise scope of Job’s search waiver.

In December of 2012, police officers obtained a search

warrant for Job’s residence, based in part on intercepts from

wiretaps of Rodriguez’s phone. While executing the search

warrant, the officers found various items including: 56.4

grams of methamphetamine in Job’s freezer, five scales,

small stashes of methamphetamine totaling 15.28 grams,

baggies, several glass pipes, and undisclosed amounts of

Spice, bath salts, and marijuana. In the garage, the officers

found an invoice for items including a test tube, a hand

boiler, and an Erlenmeyer flask. In the kitchen, the officers

found cleaning supplies, a microwave, a hot plate, and a

white apron. After the search, the San Diego County

Department of Environmental Health inspected Job’s

apartment and found that the downstairs portion was

“contaminated with methamphetamine residuals.” In a

subsequent report, the department concluded that

methamphetamine had been stored in Job’s kitchen and

living room, but that it was “unknown if manufacturing was

taking place” in the apartment.

Before trial, Job filed two motions to suppress: one for

the evidence found on his person and in his car in October

and one for the evidence found during the search of his home

in December. With its response opposing both motions, the

government submitted a police report describing the events

of October 3, 2012. The district court denied both motions

8 UNITED STATES V. JOB

without an evidentiary hearing. During trial, Job requested

jury instructions on the lesser included offense of simple

possession and on multiple conspiracies. The district court

denied both requests. A jury convicted Job on all counts.

The government sought enhanced penalties under 21 U.S.C.

§ 851 because Job had committed these offenses after prior

felony convictions.

In determining Job’s guidelines sentencing range, the

district court applied three offense level increases: (1) a two-

level increase for an offense involving the importation of

methamphetamine under U.S.S.G. § 2D1.1(b)(5), (2) a two-

level increase for maintaining a premises for the purpose of

manufacturing or distributing a controlled substance under

§ 2D1.1(b)(12), and (3) a two-level increase for the unlawful

discharge of a toxic substance under § 2D1.1(b)(13)(A).

The district court also concluded that Job was subject to a

20-year mandatory minimum under 21 U.S.C. § 851. The

court calculated a guidelines sentencing range of 360 months

to life, and sentenced Job to 365 months in prison and

supervised release for life.

II. FOURTH AMENDMENT SEARCHES

Job challenges the constitutionality of three searches:

(1) the search of his person on October 3, 2012, (2) the

search of his car on October 3, 2012, and (3) the search of

his home on December 5, 2012. We must determine whether

the searches were unreasonable under the Fourth

Amendment. We review a district court’s denial of a motion

to suppress evidence de novo and review the district court’s

factual findings for clear error. United States v. Lara, 815

F.3d 605, 608 (9th Cir. 2016) (citing United States v. Mayer,

560 F.3d 948, 956 (9th Cir. 2009)). Before turning to each

search, we address the justification for the searches accepted

by the district court.

UNITED STATES V. JOB 9

In denying Job’s motions to suppress, the district court

concluded — based on our decision in United States v. King

— that Job’s Fourth Amendment search waiver provided a

justification for all three searches. 736 F.3d 805, 810 (9th

Cir. 2013). In King, we held that “a suspicionless search,

conducted pursuant to a suspicionless-search condition of a

violent felon’s probation agreement, does not violate the

Fourth Amendment.” Id. The district court erred by

applying King’s holding to this case for two reasons.

First, it is undisputed that the officers were unaware of

Job’s Fourth Amendment search waiver when they stopped

him and patted him down. The district court did not

determine whether the officers were aware of the search

waiver before conducting the search of his person and the

search of his car. It based its decision solely on the fact that

Job was subject to a Fourth Amendment search waiver at the

time of the searches. Police officers must know about a

probationer’s Fourth Amendment search waiver before they

conduct a search in order for the waiver to serve as a

justification for the search. In United States v. Caseres, we

concluded that a “search is not justified by the state’s interest

in supervising” parolees when the officers were unaware of

the waiver before the search. 533 F.3d 1064, 1076 (9th Cir.

2008); see also Moreno v. Baca, 431 F.3d 633, 641 (9th Cir.

2005) (holding that “police officers cannot retroactively

justify a suspicionless search and arrest on the basis of an

after-the-fact-discovery of . . . a parole [search waiver]

condition”). This reasoning also logically applies to

probationers, who have a higher expectation of privacy than

parolees. Lara, 815 F.3d at 610 (citing Samson v.

California, 547 U.S. 843, 850 (2006)). A Fourth

Amendment search waiver cannot provide a justification for

a search of a probationer where the officers were unaware of

the waiver before they undertook the search.

10 UNITED STATES V. JOB

Second, our decision in King was limited to individuals

on probation for violent felonies. 736 F.3d at 810; see also

Lara, 815 F.3d at 609–10 (noting that King was “expressly

limited” to violent felons and does not apply to individuals

on probation for nonviolent drug crimes). Although the

parties dispute whether Job was on probation for a felony or

a misdemeanor, we need not decide that issue because there

is no dispute that Job was on probation for a nonviolent

offense. 2

In Lara, we said that violations of California Health and

Safety Code §§ 11378 and 11379(a), for the possession for

sale and transportation of methamphetamine, are

“nonviolent drug crime[s].” 815 F.3d at 610. Job was on

probation for a similar offense, unlawful possession of

methamphetamine, in violation of § 11377(a). Because Job

was on probation for a nonviolent offense, Job’s Fourth

Amendment search waiver cannot justify a suspicionless

search of his person, car, or home. The district court erred

in denying Job’s motions to suppress evidence from all three

searches solely on the basis of Job’s Fourth Amendment

search waiver.

The government now offers numerous, independent

justifications for each search aside from the search waiver.

We address the government’s other justifications for the

searches, some of which are raised for the first time on

appeal, because we can affirm on any ground supported in

2

At the time of the searches, Job was on probation for unlawful

possession of a controlled substance, in violation of California Health

and Safety Code § 11377(a). This offense is known as a “wobbler”

because it can be punished as a misdemeanor or a felony. United States

v. Diaz-Argueta, 564 F.3d 1047, 1049 (9th Cir. 2009); see also People v.

Morales, 169 Cal. Rptr. 3d 814, 820 (Ct. App. 2014).

UNITED STATES V. JOB 11

the record. Recording Indus. Ass’n v. Diamond Multimedia

Sys. Inc., 180 F.3d 1072, 1076 n.3 (9th Cir. 1999).

A. Search of Job’s Person

The government bears the burden of proving that a

warrantless search or seizure falls within an exception to the

warrant requirement. United States v. Scott, 705 F.3d 410,

416 (9th Cir. 2012) (citing United States v. Hawkins, 249

F.3d 867, 872 (9th Cir. 2001)). The government argues that

the search and seizure of Job’s person is justified

(1) pursuant to Job’s Fourth Amendment search waiver, (2)

as a valid Terry stop and frisk, or (3) as a valid protective

sweep. As already discussed, Job’s Fourth Amendment

search waiver cannot provide a justification for the stop and

search where officers were unaware of the waiver before the

stop.

The government now argues, for the first time on appeal,

that the initial stop and pat down were permitted under Terry

v. Ohio, 392 U.S. 1 (1968). Terry allows a “brief stop”

where an officer has “reasonable suspicion to believe

‘criminal activity may be afoot.’” Thomas v. Dillard, 818

F.3d 864, 874 (9th Cir. 2016) (citing Terry, 392 U.S. at 30);

see also United States v. Crapser, 472 F.3d 1141, 1147 (9th

Cir. 2007). After stopping an individual based on reasonable

suspicion, an officer may also conduct a limited pat down,

or frisk, if he believes that “the individual whose suspicious

behavior he is investigating at close range is armed and

presently dangerous.” Minnesota v. Dickerson, 508 U.S.

366, 373 (1993); see also United States v. Thomas, 863 F.2d

622, 628 (9th Cir. 1988).

We review de novo whether a Terry stop was supported

by reasonable suspicion. Crapser, 472 F.3d at 1145 (citing

United States v. Thompson, 282 F.3d 673, 678 (9th Cir.

12 UNITED STATES V. JOB

2002)). Reasonable suspicion that a person is engaged in

criminal activity “is formed by ‘specific articulable facts

which, together with objective and reasonable inferences,

form the basis for suspecting that the particular person

detained is engaged in criminal activity.’” United States v.

Colin, 314 F.3d 439, 442 (9th Cir. 2002) (quoting United

States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000)).

The police report offers the only evidence of the details

regarding the events on October 3 because the district court

did not hold an evidentiary hearing on the motion to suppress

for the stop and subsequent searches.

In determining whether a stop was supported by

reasonable suspicion, we consider the totality of the

circumstances. Thomas, 863 F.2d at 625. It is unclear from

the record: (1) whether the officers were at the scene to

execute an arrest warrant for Richard Elliot, or to conduct a

search pursuant to a Fourth Amendment search waiver at the

home; (2) how many officers were at the scene; and (3) who

owned the home at 2504 Snowdrop Street. From the record

available, it appears that Officer Dedonato only observed:

(1) Job at a location where the officers were conducting

either an arrest of another person pursuant to a warrant or a

search pursuant to another person’s Fourth Amendment

search waiver; (2) Job and Holt open the garage door as the

police were arriving; (3) Job appear surprised and nervous;

and (4) Job wearing baggy clothes, “with the pockets

appearing to be full of items.” These facts taken together do

not support the conclusion that the officers had reasonable

suspicion that Job was engaged in criminal activity.

We give “significant weight to an officer’s observation

of a visible bulge in an individual’s clothing that could

indicate the presence of a weapon” as evidence supporting

reasonable suspicion to conduct a pat down. United States

UNITED STATES V. JOB 13

v. Flatter, 456 F.3d 1154, 1157 (9th Cir. 2006). But the facts

that Job’s pants appeared to be “full of items” and he

appeared nervous do not support the conclusion that he was

engaged in criminal activity. See United States v. I.E.V., 705

F.3d 430, 438 (9th Cir. 2012) (noting that “mere nervous or

fidgety conduct and touching of clothing” is not enough to

establish reasonable suspicion). Testimony from the officers

beyond what was in the police report might have bolstered

the government’s arguments that this stop was justified

under Terry, but the government provided no other evidence,

beyond the police report, in opposing Job’s motion to

suppress.

The record provides no information on the offense for

which Elliot was arrested — for example, whether it was for

a crime of violence — and whether there was reason for the

officers to have been concerned that Job and Holt were

engaged in similar activity or might pose a danger to them.

Dillard, 818 F.3d at 878 (noting that “the type of crime a

person is suspected of committing may be highly relevant”

to the reasonable suspicion analysis). Nor does the police

report state that Job made any furtive movements or

appeared threatening, which would be relevant to our

analysis. Flatter, 456 F.3d at 1158. Given the lack of

information in the record, we conclude that the government

has failed to meet its burden of establishing that the stop and

the pat down were supported by reasonable suspicion. 3

3

The government argues that a pat down for the officers’ safety was

justified because the officers were serving a warrant “at dusk, only to

have two unknown men (who might be [Elliot’s] compatriots) suddenly

open the garage at the target home as soon as police arrive.” The officers

would certainly be permitted to conduct a pat down if they reasonably

believed that their “safety or that of others was in danger,” but the pat

14 UNITED STATES V. JOB

The government also raised a new justification for the

pat down at oral argument, arguing that the stop was valid as

a protective sweep under Maryland v. Buie, 494 U.S. 325

(1990), and that the subsequent search was valid under

Minnesota v. Dickerson, 508 U.S. 366. We disagree. “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. It is narrowly confined to a cursory

visual inspection of those places in which a person might be

hiding.” Buie, 494 U.S. at 327. The protective sweep is

justified when the officers are effectuating “the arrest of a

suspect in his home pursuant to an arrest warrant.” Id. The

government has not met its burden of proving that the

officers were at the home pursuant to an arrest warrant, or

that this was Richard Elliot’s home. Moreover, the

protective sweep would have been limited to a visual

inspection for persons and would not have permitted the

officers to conduct a pat down of Job. Id.

Because the government has failed to prove a

justification for the warrantless stop and subsequent pat

down, we conclude that the search of Job’s person was

unlawful. The evidence discovered during the pat down —

a glass pipe and $1450 in cash — therefore should have been

suppressed. See United States v. Lustig, 830 F.3d 1075,

1079 (9th Cir. 2016) (citing Davis v. United States, 564 U.S.

229, 236–37 (2011)).

B. Search of Job’s Car

As noted, the government bears the burden of proving

that a warrantless search of Job’s car falls within an

down is permitted only if the initial stop itself was based on reasonable

suspicion. Thomas, 863 F.2d at 628.

UNITED STATES V. JOB 15

exception to the warrant requirement. Scott, 705 F.3d at 416.

The government offers two alternative justifications for the

search of Job’s car: (1) the automobile exception or (2) the

discovery of a valid Fourth Amendment search waiver. Both

of these arguments fail.

The automobile exception allows the police to conduct

“a warrantless search of a vehicle if there is probable cause

to believe that the vehicle contains evidence of a crime.”

United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir.

2010). The government argues that the evidence of the glass

pipe seized from Job’s person gave the officers probable

cause to believe that there was evidence of contraband in

Job’s car. We have already determined that the glass pipe

was unlawfully seized, and it therefore follows that evidence

derived from the discovery of the pipe would be

impermissible fruits of the unlawful seizure. United States

v. Washington, 490 F.3d 765, 776–77 (9th Cir. 2007).

Because the government offers no other evidence to form

probable cause to search Job’s car, the automobile exception

cannot justify the warrantless search of the car.

The government next argues that the discovery of the

Fourth Amendment search waiver gave the officers a valid

justification for the search. The police report suggests that

the officers may have learned about the search waiver during

a records check after the officers patted Job down, but before

they searched his car. The district court made no finding on

this fact, however, and Job argues that the record is at least

unclear as to when the officers learned of Job’s Fourth

Amendment search waiver. We agree. As we noted above,

a Fourth Amendment search waiver cannot provide a

justification for a search of a probationer where the officers

were unaware of the waiver before they undertook the

search. From this record, we cannot conclude that the

16 UNITED STATES V. JOB

government has proved by a preponderance of the evidence

that the officers knew about the search waiver before

searching Job’s car. See United States v. Vasey, 834 F.2d

782, 785 (9th Cir. 1987). 4

The government has failed to prove a valid justification

for the search of Job’s car. Therefore any evidence seized

from the car — including the 3.9 grams of methamphetamine

in baggies — should have been suppressed. See Lustig, 830

F.3d at 1080.

C. Search of Job’s Home

We next determine whether the evidence seized from a

search of Job’s home on December 5 pursuant to a search

warrant was reasonable under the Fourth Amendment. We

review de novo the validity of a search warrant. United

States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013).

On appeal, the government proposes three justifications for

this search: (1) a valid search warrant, (2) Job’s Fourth

Amendment search waiver, or (3) the good faith exception

to the exclusionary rule. Because we conclude that the

search was conducted pursuant to a valid search warrant, we

need not address the government’s two alternative

justifications.

Job argues that the affidavit in support of the search

warrant provides an insufficient basis to establish probable

cause that evidence of methamphetamine trafficking would

be found in his home. Specifically, he argues that (1) the

warrant relied in part on the unlawful search of Job’s person

4

In any event, the government conceded at oral argument that even

if the officers knew of the existence of Job’s Fourth Amendment search

waiver, they did not know the terms of the waiver when they searched

the car or that Job was in fact only a nonviolent probationer.

UNITED STATES V. JOB 17

and his car on October 3; (2) the affidavit asserts that specific

telephone numbers are “used by” individuals, but does not

give factual support for those conclusions; and (3) the

affidavit contains broad conclusions and editorializing by

the affiant, Detective James Cady, that are not supported by

underlying facts. 5 The government responds that the

affidavit contains sufficient facts to establish probable cause.

We agree.

We normally give “great deference” to a magistrate

judge’s finding that probable cause supports a warrant.

Underwood, 725 F.3d at 1081 (citing United States v. Krupa,

658 F.3d 1174, 1177 (9th Cir. 2011)). But Detective Cady’s

affidavit in support of the search warrant referenced the

events on October 3 and the searches of Job’s person and car,

and we have concluded that those searches were unlawful.

A search warrant is not “rendered invalid merely because

some of the evidence included in the affidavit is tainted.”

United States v. Nora, 765 F.3d 1049, 1058 (9th Cir. 2014)

(citing United States v. Reed, 15 F.3d 928, 933 (9th Cir.

1994)). “The warrant remains valid if, after excising the

tainted evidence, the affidavit’s ‘remaining untainted

evidence would provide a neutral magistrate with probable

cause to issue a warrant.’” Id. (quoting Reed, 15 F.3d at

933). We make this “determination without the usual

deference owed to the magistrate’s initial finding of probable

cause.” Id. (citing United States v. Kelley, 482 F.3d 1047,

1051 (9th Cir. 2007)). We therefore will excise the

5

Although the affidavit includes no information about subscriber

information or voice recognition for Job’s phone number, his identity

was corroborated when Brown-Rodriguez referred to him as Travis over

the phone, and when officers observed him with Brown-Rodriguez in the

parking lot 30 minutes after Brown-Rodriguez and Job discussed

meeting.

18 UNITED STATES V. JOB

paragraphs that reference the unlawful searches and

determine on our own whether the remaining portions of the

affidavit support a finding of probable cause.

According to Detective Cady, the facts in the affidavit

are derived from: oral and written investigative reports,

physical surveillance by law enforcement, a review of pen

register data, statements by confidential sources, a review of

telephone calls and text messages obtained through

wiretapping of codefendant Robert Rodriguez and Brown-

Rodriguez’s telephones, and information from law

enforcement databases. The affidavit begins with statements

that Robert Rodriguez and Carrie Brown-Rodriguez were

involved in the distribution of methamphetamine. The

affidavit states that Job assisted Rodriguez and Brown-

Rodriguez in “‘cutting’ methamphetamine that is then sold

or fronted to others.” The warrant identifies Job, Rodriguez,

and Brown-Rodriguez as individuals involved in the

distribution of methamphetamine, and alleges that there is

probable cause for a violation of conspiracy to distribute a

controlled substance, in violation of 21 U.S.C. §§ 841(a)(1),

846. The affidavit also lists Job’s previous conviction in

2001 for conspiracy to distribute methamphetamine.

Job argues that the affidavit fails to establish probable

cause because the affidavit does not provide sufficient facts

to support Detective Cady’s conclusion that Job is a

narcotics trafficker. Although the affidavit does not

expressly assert that Job is a trafficker, the affidavit does

provide facts to support the conclusion that Job was in the

business of “buying and selling” methamphetamine.

Underwood, 725 F.3d at 1083. The affidavit includes

references to intercepts of conversations regarding a

“business deal” between Rodriguez and Job. Job asks

Brown-Rodriguez for “cuatro,” and then states that he will

UNITED STATES V. JOB 19

“keep going somewhere else” because he has people

“bugging” him. Detective Cady explains that Job is referring

to four ounces of methamphetamine. For all of these

intercepted phone calls and text messages, Detective Cady

provides the participants, the date and time of the exchange,

the phone number used, and the content of the conversations.

The affidavit thus lays a sufficient foundation to establish

probable cause that Job was involved in the distribution of

drugs with Rodriguez. See id. at 1084.

Job also argues that the affidavit does not establish that

evidence of methamphetamine trafficking would be found in

his home. We have said, however, that “a magistrate is

allowed to draw a reasonable inference that ‘[i]n the case of

drug dealers, evidence is likely to be found where the dealers

live.’” United States v. Fernandez, 388 F.3d 1199, 1254 (9th

Cir. 2004) (citing United States v. Angulo-Lopez, 791 F.2d

1394, 1399 (9th Cir. 1986)). Because Detective Cady’s

affidavit provides sufficient facts to support the conclusion

that Job was involved in the distribution of drugs, the Court

may draw the reasonable inference that evidence is likely to

be found where Job lives. Id.

Some statements in the affidavit are Detective Cady’s

conclusions, interpretations of cryptic conversations, and

interpretations of drug slang and coded terms. But there is

sufficient information to establish probable cause to believe

that Job, Rodriguez, and Brown-Rodriguez were engaged in

drug trafficking together and that — at least at some point in

the August/September timeframe — there was

methamphetamine in Job’s residence. Job argued in the

district court, but not here, that this information was stale by

December 4, when the affidavit was signed and submitted to

the magistrate judge. Because Job did not pursue his

staleness argument in this Court, we need not consider the

20 UNITED STATES V. JOB

reasonableness of the inference that drugs would be found in

Job’s home.

Despite some deficiencies in the affidavit, we conclude

that after excising the references to the unlawful searches,

the remaining portions of the affidavit established that there

was a “fair probability that contraband or evidence of a

crime” would be found in Job’s home. United States v.

Williams, 846 F.3d 303, 312 (9th Cir. 2017) (citation

omitted). We conclude that the search of Job’s home was

lawful and that the evidence seized was admissible at trial.

III. THE EFFECT OF UNLAWFULLY SEIZED

EVIDENCE ON THE JURY VERDICT

Having found that the district court erred in denying the

motion to suppress the evidence found on Job’s person and

in his car on October 3, we must next determine whether that

error was harmless. A constitutional error, such as a failure

to suppress evidence from a Fourth Amendment violation, is

harmless only when it appears “beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained.” Chapman v. California, 386 U.S. 18, 24 (1967);

see United States v. Walters, 309 F.3d 589, 593 (9th Cir.

2002). 6 “Review for harmless error requires not only an

evaluation of the remaining incriminating evidence in the

record, but also the most perceptive reflections as to the

probabilities of the effect of [the] error on a reasonable trier

of fact.” United States v. Bishop, 264 F.3d 919, 927 (9th Cir.

6

The government misstates our standard of review for harmless

error; the standard is not whether “a rational jury could . . . have found

Job guilty” on both counts. See United States v. Oaxaca, 233 F.3d 1154,

1158 (9th Cir. 2000) (noting “the harmlessness of an error is distinct

from evaluating whether there is substantial evidence to support a

verdict”).

UNITED STATES V. JOB 21

2001) (quoting United States v. Harrison, 34 F.3d 886, 892

(9th Cir. 1994)). We “must be convinced that the improperly

admitted evidence did not contribute to the verdict,” id., and

the government bears the burden of showing the

harmlessness of the error, United States v. Gonzalez-Flores,

418 F.3d 1093, 1099 (9th Cir. 2005).

The jury convicted Job of conspiracy to distribute

methamphetamine (“Count 1”) and possession with intent to

distribute methamphetamine (“Count 5”). The district court

should have suppressed two key pieces of incriminating

evidence: 3.9 grams of methamphetamine in baggies, which

was found in Job’s car on October 3, and $1450 in cash,

which was found during the pat down on the same day. The

government offered this evidence at trial as substantive

evidence on both counts.

With regard to Count 1, the government argues that there

was ample evidence — even without the fruits of the

searches on October 3 — for a jury to convict Job of

conspiracy to distribute methamphetamine. At trial, Brown-

Rodriguez testified that she witnessed two meetings between

Rodriguez and Job. She also testified that Rodriguez met

with Job to give him methamphetamine because Job said that

he “had someone waiting to get meth from him.” In

addition, Rodriguez and Job discussed a balance owed for

methamphetamine that Rodriguez had provided, or fronted,

to Job. Brown-Rodriguez’s trial testimony also showed that

Job cut methamphetamine for Rodriguez, which Brown-

Rodriguez later sent to a dealer in South Carolina.

Job argues that none of this evidence shows that Job was

involved in a larger conspiracy with Rodriguez and Brown-

Rodriguez to distribute drugs. At most, he argues, the

evidence indicates that Job had a “buyer-seller” relationship

with Rodriguez. See United States v. Loveland, 825 F.3d

22 UNITED STATES V. JOB

555, 561 (9th Cir. 2016). Job also notes that in her trial

testimony, Brown-Rodriguez failed to include Job as a

member of Rodriguez’s distribution conspiracy. When

asked if she was aware of whether or not Rodriguez provided

methamphetamine to Job with instructions to sell to others,

Brown-Rodriguez responded, “I don’t know.”

Although the government offered evidence from the

October 3 searches as evidence on both counts, the

government provided substantial evidence of Job’s

involvement in the conspiracy that pre-dated the October 3

searches. The prosecutor referenced the events of October 3

only once in closing argument in regard to Count 1. Based

on our review of the remaining evidence and the likely effect

of the evidence on a reasonable trier of fact, we conclude

beyond a reasonable doubt that the admission of the illegally

seized evidence did not contribute to the verdict on Count 1

for conspiracy to distribute methamphetamine. The district

court’s failure to suppress the evidence therefore was

harmless as to Count 1, and we affirm Job’s conviction for

conspiracy to distribute methamphetamine.

We reach a different conclusion as to Count 5 for

possession with intent to distribute methamphetamine. At

trial, Job asserted — as his principal defense —that the 56.4

grams of methamphetamine found in his freezer on

December 5 was for personal use. The government

presented evidence of distribution, such as the baggies and

scales found in Job’s home, to support its intent-to-distribute

theory. But the government also relied on and explicitly

invited the jury to consider the evidence from the October 3

searches — particularly the $1450 in cash and the 3.9 grams

of methamphetamine that should have been suppressed — as

evidence of intent to distribute. Indeed, the prosecutor

UNITED STATES V. JOB 23

mentioned it three separate times in closing argument.

During closing argument, the prosecutor stated:

Travis Job walked around with over $1,400

in his [pockets]. That is what he had on

October 3rd, when he had the multiple bags

of methamphetamine. And that is an

interesting point to keep up. When you’re

considering the [events of] October 3rd and

whether or not [the methamphetamine

possessed on December 5th] is personal use,

the two bags of methamphetamine, know

this, this scale in the I-Phone box that has

these bags, tiny little bags right here, are the

exact same type of bags that

methamphetamine was packaged in that he

was carrying around when he had his $1,400

on October 3rd, of 2012, when he was

stopped and arrested.

The government correctly notes that the district court

told the jury that the statements of counsel are not evidence,

but the prosecutor’s remarks in closing argument were a

persistent reminder for the jury to consider the evidence of

the seizures on October 3 as evidence of Job’s possession

with intent to distribute on December 5. Although there was

other evidence to support Job’s conviction for possession

with intent to distribute, the large amount of cash and small

quantities of methamphetamine seized on October 3

provided critical evidence to rebut Job’s defense that the

methamphetamine found in his freezer on December 5 was

for his personal use and not for distribution. Based on the

remaining incriminating evidence and the likelihood that the

jury considered the evidence explicitly mentioned several

times in closing, we cannot conclude beyond a reasonable

24 UNITED STATES V. JOB

doubt that the evidence from the October 3 searches did not

contribute to the jury’s verdict on Count 5. We therefore

vacate Job’s conviction for possession with intent to

distribute and remand for further proceedings.

IV. JURY INSTRUCTIONS

At trial, Job requested two specific jury instructions,

which the district court denied: an instruction on the lesser

included offense of simple possession, with regard to Count

5, and an instruction on multiple conspiracies, with regard to

Count 1. Because we vacate Job’s conviction for possession

with intent to distribute, we need not address the district

court’s denial of a jury instruction on the lesser included

offense of simple possession. The issue can be raised again

in the district court if the government chooses to retry Job on

the charge of possession with intent to distribute.

“A multiple conspiracies instruction is required only if

the defendants’ theory of the charged conspiracy or

conspiracies ‘is supported by law and has some foundation

in the evidence.’” Fernandez, 388 F.3d at 1247 (quoting

United States v. Anguiano, 873 F.3d 1314, 1317 (9th Cir.

1989)). We have not been entirely consistent on whether to

apply an abuse of discretion or de novo standard of review

in reviewing the district court’s refusal to give a multiple

conspiracies instruction when the parties dispute whether

there was sufficient evidence to support such an instruction.

Compare United States v. Mincoff, 574 F.3d 1186, 1192 (9th

Cir. 2009) (quoting United States v. Bello-Bahena, 411 F.3d

1083, 1089 (9th Cir. 2005)) (“Where the parties dispute

whether the evidence supports a proposed instruction, we

review a district court’s rejection of the instruction for an

abuse of discretion.”), with Anguiano, 873 F.2d at 1317

(“[T]he issue of whether the evidence was sufficient to

support the giving of a multiple conspiracies instruction

UNITED STATES V. JOB 25

should be subject to de novo review.”). Because we

conclude that the district court did not err in refusing to give

a multiple conspiracies instruction under either standard of

review, we need not resolve that conflict here.

“Evidence sufficient to support a multiple conspiracies

instruction is present where a jury could reasonably conclude

that some of the defendants were only involved in separate

conspiracies unrelated to the overall conspiracy charged in

the indictment.” Mincoff, 574 F.3d at 1196 (quoting

Fernandez, 388 F.3d at 1247). That is not the case here.

Even though Brown-Rodriguez did not identify Job at trial

as part of the distribution ring, there was evidence before the

jury that Rodriguez fronted drugs to Job. Brown-Rodriguez

testified that she witnessed Rodriguez and Job meet in a

hotel after Job “told Robert that he had someone waiting to

get meth from him.” She also testified that Rodriguez

provided Job with methamphetamine. Job then left the hotel

“to go meet the person he was talking about” and returned

an hour later. At trial, the government also introduced a

recording of an intercepted phone call between Rodriguez

and Brown-Rodriguez, in which the two discuss Job’s

balance for fronted methamphetamine.

Brown-Rodriguez also testified that Rodriguez hired Job

to cut methamphetamine for her and Rodriguez. The

evidence at trial also indicates that Job was aware that the

methamphetamine he cut was distributed to others. Brown-

Rodriguez testified that she would mail cut

methamphetamine to a dealer in South Carolina. The

government introduced text messages between Brown-

Rodriguez and Job, in which they discussed when he would

deliver the cut methamphetamine. In one of these messages,

Job writes, “I can get you the four [ounces] to finish the

mail.” These text messages indicate that Job was aware that

26 UNITED STATES V. JOB

Brown-Rodriguez intended to mail the methamphetamine he

cut for her. In addition, cutting methamphetamine has a

direct relationship to the quantity of drugs that can be sold

and therefore the amount of profits to be gained in a

conspiracy to distribute methamphetamine. See, e.g., United

States v. Chavez-Alvarez, 594 F.3d 1062, 1064 (8th Cir.

2010); United States v. Castro, 908 F.2d 85, 88 (6th Cir.

1990) (citation omitted). On the basis of the direct and

circumstantial evidence at trial, we conclude that no

reasonable jury could reasonably find Job’s cutting of

methamphetamine was a conspiracy separate from or

unrelated to the overall conspiracy to distribute charged in

the indictment.

Although a single conspiracy can include “several

subagreements or subgroups of conspirators,” Fernandez,

388 F.3d at 1248 n.34 (citing United States v. Bibbero, 749

F.2d 581, 587 (9th Cir. 1984)), that does not mean there are

separate conspiracies. The evidence presented at trial

perhaps shows a subagreement to cut methamphetamine, but

that subagreement is not “separate” from and “unrelated” to

the overall conspiracy to distribute charged in Count 1. Job

cut methamphetamine for Rodriguez and Brown-Rodriguez

and was aware that the methamphetamine he cut was

distributed to others. Thus, his activity was a part of the

distribution conspiracy charged in the indictment. Based on

the evidence in the record, we conclude that the district court

did not err in refusing to give a multiple conspiracies

instruction under either an abuse of discretion or a de novo

standard of review.

V. SENTENCING ISSUES

We review de novo whether a district court complied

with Rule 32 of the Federal Rules of Criminal Procedure in

making its determinations at sentencing. We review a

UNITED STATES V. JOB 27

district court’s interpretation of the Sentencing Guidelines

de novo and review its factual findings for clear error.

United States v. Doe, 778 F.3d 814, 821 (9th Cir. 2015);

United States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000).

The government bears the burden of proving facts that

support a sentencing adjustment by a preponderance of the

evidence. United States v. Romero-Rendon, 220 F.3d 1159,

1160 (9th Cir. 2000).

In its presentence investigation report, the probation

office recommended three increases to the base offense level

of Job’s guidelines sentencing range as follows: (1) two

levels for an offense involving the importation of

methamphetamine under U.S.S.G. § 2D1.1(b)(5), (2) two

levels for an offense in which the defendant maintained a

premises for the purpose of manufacturing or distributing a

controlled substance under § 2D1.1(b)(12), and (3) two

levels for an offense involving an unlawful discharge of a

toxic substance under § 2D1.1(b)(13)(A). In applying the

three offense level increases recommended by the probation

office and requested by the government, the district court

stated:

There is no doubt, based on the evidence

I heard, that [Job] was in the

importing of methamphetamine, and the

methamphetamine was coming from Mexico

and was being given to him to cut and

process. I have no doubt that that two-level

increase should apply. I also don’t have any

doubt with regards to the finding that he

was maintaining the premises for the

manufacturing and distribution of a

controlled substance. I have no problems

with that. I have no problems with the fact

28 UNITED STATES V. JOB

that there was an unlawful discharge of a

toxic substance unless we’re prepared to

assume that methamphetamine is not a toxic

substance.

The district court then increased Job’s base offense level

from 34 to an offense level of 40; with a criminal history

category V, Job’s guidelines sentencing range was 360

months to life. The district court also concluded that Job was

subject to a 20-year mandatory minimum under 21 U.S.C.

§ 851. 7 The court imposed a sentence of 365 months’

imprisonment and supervised release for life.

A. Sufficiency of District Court’s Findings at

Sentencing

In his sentencing memorandum to the district court, Job

argued that there was insufficient evidence to support the

offense level increases. He argued that (1) there was no

evidence that he was personally involved in the importation

of methamphetamine, (2) there was no evidence that he had

chemicals to manufacture methamphetamine in his home,

and (3) “the underlying foundation for the discharge of toxic

substances was never produced to the court.” Therefore, the

burden was on the government to prove the facts to support

7

Job argues that 21 U.S.C. § 851 violates the Sixth Amendment

because the sentencing enhancement scheme increases his mandatory

minimum based on a fact that has not been decided by a jury. Current

Ninth Circuit and Supreme Court precedent foreclose this argument. See

Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) (holding

that the fact of a prior conviction is a sentencing factor and not an

element of the offense that must be decided by a jury); United States v.

Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam) (noting

that we have “repeatedly held . . . that Almendarez-Torres is binding

unless it is expressly overruled by the Supreme Court”).

UNITED STATES V. JOB 29

these increases by a preponderance of the evidence.

Romero-Rendon, 220 F.3d at 1160. Job argues on appeal

that the government failed to do so and that it is difficult to

discern from the district court’s statements at sentencing its

reasoning or on which facts it relied in applying these

increases. We agree.

When a defendant makes specific objections to the

presentence investigation report, as Job did here, the district

court must follow the procedures set forth in Rule 32 of the

Federal Rules of Criminal Procedure. United States v. Doe,

705 F.3d 1134, 1153 (9th Cir. 2013); United States v.

Ingham, 486 F.3d 1068, 1073–74 (9th Cir. 2007). Rule 32

states that the district court “must — for any disputed portion

of the presentence report or other controverted matter — rule

on the dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Fed. R.

Crim. P. 32(i)(3)(B). We mandate “strict compliance” with

Rule 32. Doe, 705 F.3d at 1153 (quoting United States v.

Houston, 217 F.3d 1204, 1208 (9th Cir. 2000)). In the

context of Rule 32, a ruling on a dispute is an “explicit

factual finding that resolves the dispute.” Carter, 219 F.3d

at 867; see also Doe, 705 F.3d at 1153 (citation and internal

quotation marks omitted) (noting that rulings must be

“express or explicit”). Rule 32 findings “need not be

detailed and lengthy,” but they must “state the court’s

resolution of the disputed issues.” Ingham, 486 F.3d at 1074

(citing United States v. Karterman, 60 F.3d 576, 583 (9th

Cir. 1995)). We turn now to whether the statements made

by the district court were explicit findings adequate under

Rule 32 to resolve the three disputed issues.

In regard to the importation of methamphetamine under

U.S.S.G. § 2D1.1(b)(5), the district court made three

30 UNITED STATES V. JOB

factual findings based on the evidence at trial: (1) Job was

“in the importing of methamphetamine,” (2) “the

methamphetamine was coming from Mexico,” and (3) the

methamphetamine was “being given to him to cut and

process.” The district court’s first finding is the only finding

that addresses Job’s objection about whether he was

involved in the importation. Although this finding does rule

on the objection, the district court’s finding was clear error

because the government offered no evidence — at trial or at

sentencing — that Job was personally involved in the

importation of methamphetamine. See United States v.

Pineda-Doval, 692 F.3d 942, 944 (9th Cir. 2012) (quoting

Red Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d

1080, 1087 (9th Cir. 2011)) (noting that a factual finding is

clearly erroneous if it is “without support in inferences that

may be drawn from the facts in the record”).

With respect to the increase under U.S.S.G.

§ 2D1.1(b)(12) for maintaining a premises for the purpose of

manufacturing or distributing methamphetamine, the district

court stated that it did not “have any doubt with regards to

the finding that [Job] was maintaining the premises for the

manufacturing and distribution of a controlled substance.”

This statement does not explicitly rule on Job’s objection

that he did not have any chemicals to manufacture

methamphetamine in his home. Although the probation

office offered support for its conclusion that the offense level

increase applied — which may be the finding the court

referred to here — the district court “may accept the

presentence report as its findings of fact, but only after it has

resolved all objections.” United States v. Standard, 207 F.3d

1136, 1142 (9th Cir. 2000). Further, we have previously

rejected arguments that a district court complies with Rule

32(i)(3)(B) when it makes a finding that an increase should

UNITED STATES V. JOB 31

apply but nevertheless fails to rule on a factual dispute

underlying the increase. See Carter, 219 F.3d at 867.

As for the last two-level increase for an offense

involving the unlawful discharge of a toxic substance under

U.S.S.G. § 2D1.1(b)(13)(A), the district court similarly

applied the increase without ruling on Job’s objection that

the government had not provided a factual basis for it. The

district court cited no evidence — produced by the

government at trial or at sentencing — for this increase,

saying only that it had “no problems with the fact that there

was an unlawful discharge of a toxic substance unless we’re

prepared to assume that methamphetamine is not a toxic

substance.” Because the district court’s ruling was not

express or explicit, it was insufficient to comply with our

interpretation of Rule 32. Doe, 705 F.3d at 1153.

On appeal, the government invites us to conduct our own

factual inquiry to determine whether there were sufficient

facts in the record to support these three offense level

increases. But such determinations are fact-intensive

inquiries better suited for the district court. Further, “it is

well settled law in this circuit that when the district court

fails to make the required Rule 32 findings or determinations

at the time of sentencing, we must vacate the sentence and

remand for resentencing.” Ingham, 486 F.3d at 1074

(quoting Carter, 219 F.3d at 866).

Although we vacate Job’s sentence on both counts for

failure to comply with Rule 32, we address Job’s arguments

with respect to the offense level increases at sentencing

because these issues are likely to arise again at resentencing,

regardless of whether there is a new trial on Count 5. We do

not address the issue of whether Job’s sentence was

substantively unreasonable.

32 UNITED STATES V. JOB

B. Importation of Methamphetamine Under U.S.S.G.

§ 2D1.1(b)(5)

U.S.S.G. § 2D1.1(b)(5) allows for a two-level increase if

“the offense involved the importation of . . .

methamphetamine or the manufacture of . . .

methamphetamine from listed chemicals that the defendant

knew were imported unlawfully.” § 2D1.1(b)(5). As noted

above, the district court erroneously found that Job was

personally involved “in the importing of

methamphetamine.”

The evidence at trial showed that Job’s codefendant

Robert Rodriguez imported methamphetamine from

Mexico. Rodriguez was charged with and convicted of

conspiracy to import methamphetamine, in violation of

21 U.S.C. §§ 952, 960(b)(1)(H), 963. Job was not charged

with that conspiracy, but with a separate conspiracy to

distribute methamphetamine. At trial, the government

provided no evidence that Job was personally involved in the

importation of methamphetamine. At sentencing, the

government therefore asked for this two-level increase

through relevant conduct related to jointly undertaken

criminal activity under U.S.S.G. § 1B1.3(a)(1)(B) —

presumably the jointly undertaken activity between Job and

Rodriguez. If Job was not personally involved in the

importation, the increase could apply only if the district court

determined that the importation was “within the scope of

jointly undertaken criminal activity,” “in furtherance of that

criminal activity,” and “reasonably foreseeable in

connection with that criminal activity” under

§ 1B1.3(a)(1)(B). The district court made no factual

findings or determinations with respect to this argument at

Job’s sentencing hearing.

UNITED STATES V. JOB 33

On appeal, the government argues that § 2D1.1(b)(5) of

the Sentencing Guidelines can be imposed on a strict liability

basis so long as the government proves that the drugs were

imported by someone — and regardless of the defendant’s

intent, knowledge, or lack of knowledge that the drugs were

imported. Relying on United States v. Biao Huang, 687 F.3d

1197 (9th Cir. 2012), the government argues that it need only

prove that the drugs were imported by someone where a

defendant was not personally involved in the importation

and there is no evidence that he had actual knowledge of the

importation.

In Biao Huang, relying on the plain language of the

Guidelines, we rejected the argument that U.S.S.G.

§ 2D1.1(b)(5) requires the government to show that the

defendant himself personally imported the drugs. 687 F.3d

at 1205–06. In contrast to other increases that do require that

the defendant himself import drugs or be “directly involved”

in the importation, § 2D1.1(b)(5) only requires that the

offense charged involve importation by someone, not

necessarily the defendant. Id. at 1205. Hence our statement

that “a defendant need not be personally involved in the

importation of illegal drugs to receive an [increase] under

§ 2D1.1(b)(5); it is enough for the government to show that

the drugs were imported.” Id. at 1206. We also said in Biao

Huang, however, that whether § 2D.1.1(b)(5) requires the

defendant to actually know that the methamphetamine he

sold was imported by someone is “an open question.” Id.

Only one circuit has approved the government’s

proffered reading of U.S.S.G. § 2D1.1(b)(5) that would

dispense with the requirement that the defendant actually

know the drugs were imported. In United States v. Serfass,

the Fifth Circuit stated that the plain language of

§ 2D1.1(b)(5) supports the conclusion that the increase

34 UNITED STATES V. JOB

applies to “a defendant who possesses methamphetamine

that had itself been unlawfully imported” regardless of

whether he or she had actual knowledge of the importation.

684 F.3d 548, 553 (5th Cir. 2012). We decline to adopt the

Fifth Circuit’s conclusion here — particularly where the

government never advanced this argument in the district

court and sought to apply the increase only on the basis of

jointly undertaken criminal activity under U.S.S.G. § 1B1.3,

and the district court made no determinations about the

scope of the jointly undertaken criminal activity as required

by the Sentencing Guidelines.

C. Maintaining a Premises for the Purpose of

Manufacturing or Distributing Methamphetamine

Under U.S.S.G. § 2D1.1(b)(12)

A two-level increase under U.S.S.G. § 2D1.1(b)(12)

applies “to a defendant who knowingly maintains a

premises,” which can be a single room, “for the purpose of

manufacturing or distributing a controlled substance.”

U.S.S.G. § 2D1.1 cmt. n.17. The application note also states

that manufacturing or distributing methamphetamine must

be “one of the defendant’s primary or principal uses for the

premises.” Id. To make that determination, the district court

“should consider how frequently the premises was used by

the defendant for manufacturing or distributing a controlled

substance and how frequently the premises was used by the

defendant for lawful purposes.” Id.

To support this increase, the government offered

photographs of Job’s apartment, which had been admitted at

trial, and a report by the San Diego County Department of

Environmental Health, issued after an inspection of Job’s

apartment. The report by the Department of Environmental

Health states that it is “unknown” whether

methamphetamine manufacturing occurred in Job’s

UNITED STATES V. JOB 35

apartment because “law enforcement removed the chemical

containers prior to [the inspector’s] arrival.” The

government argues that “the [district] court could certainly

have found it more likely than not that one of the primary

uses of the downstairs kitchen was to manufacture or

distribute drugs.” As evidence that a primary purpose of the

kitchen was to manufacture methamphetamine, the

government notes that the kitchen cabinets lacked food and

drink, but included a microwave and a hot plate, which are

commonly used to cut methamphetamine. Job argues that

there is no evidence to support the conclusion that Job

maintained the premises for the primary purpose of either

manufacturing or distributing methamphetamine.

From the statements made by the district court at

sentencing, it does not appear that the court considered

whether or not one of the primary purposes of Job’s kitchen

was to manufacture methamphetamine. It also is not clear

what the factual basis was for the court’s statement that it

had no doubt “with regards to the finding that he was

maintaining the premises for the manufacturing and

distribution of a controlled substance.” Further, the report

by the Department of Environmental Health is inconclusive

as to whether manufacturing was taking place at Job’s home.

The report indicates only that methamphetamine had been

stored in Job’s kitchen and living room. Job also argues that

there was no evidence at trial or at sentencing that he ever

distributed methamphetamine out of his home. Without any

findings of fact from the district court, we conclude that the

government has not met its burden of proving by a

preponderance of the evidence that Job maintained a

premises for the primary purpose of manufacturing or

distributing methamphetamine.

36 UNITED STATES V. JOB

D. Unlawful Discharge of a Toxic Substance Under

U.S.S.G. § 2D1.1(b)(13)(A)

The district court applied an increase for the unlawful

discharge of a toxic substance under U.S.S.G.

§ 2D1.1(b)(13)(A). As the government acknowledges, the

district court appears to have based its decision on a belief

that methamphetamine is by itself a toxic substance, but it

made no factual findings. An increase under

§ 2D1.1(b)(13)(A) applies to conduct that involves “any

discharge, emission, release, transportation, treatment,

storage, or disposal violation covered by the Resource

Conservation and Recovery Act, 42 U.S.C. § 6928(d); the

Federal Water Pollution Control Act, 33 U.S.C. § 1319(c);

the Comprehensive Environmental Response,

Compensation, and Liability Act, 42 U.S.C. § 9603(b); or 49

U.S.C. § 5124.” U.S.S.G. § 2D1.1 cmt. n.18.

Although no violation of these statutes was discussed —

let alone proved —at sentencing, the government argues that

we may find factual support for this increase in the

Department of Environmental Health’s report, which

indicated that the chemicals acetone, methanol, glycerol, and

ethanol were found in Job’s garage. The government

maintains that acetone and methanol are both “per se

‘hazardous wastes’” covered by the Resource Conservation

and Recovery Act, and therefore can be the basis for this

increase. Although the Environmental Protection Agency

has designated acetone and methanol as hazardous wastes,

the government presented no evidence at sentencing

regarding the form, quantity, or storage of these substances.

See Protection of the Environment, 40 C.F.R. § 261.33

(2016). Therefore, we conclude that the government did not

meet its burden of proving the facts necessary to support the

UNITED STATES V. JOB 37

increase under U.S.S.G. § 2D1.1(b)(13)(A) by a

preponderance of the evidence.

VI. CONCLUSION

The district court erred in denying Job’s motion to

suppress the evidence discovered during the unlawful

searches of Job’s person and car. That error was harmless

with respect to Job’s conviction for conspiracy to distribute

methamphetamine, and we therefore AFFIRM his

conviction on Count 1. We do not reach the same conclusion

with respect to Job’s conviction for possession with intent to

distribute; we therefore VACATE his conviction on Count 5

and REMAND for further proceedings consistent with this

opinion, including a possible retrial on that count. We

VACATE his sentence on both counts and REMAND for

resentencing.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.