Petition for Writ of Certiorari — Emiliano Nava Munoz, Petitioner v. United States

NO. __________

In the Supreme Court of the United States

____________________

EMILIANO NAVA MUNOZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________

On Petition for a Writ of Certiorari to

the United States Supreme Court

____________________

APPENDIX

____________________

PARRISH KRUIDENIER, L.L.P.

Benjamin D. Bergmann

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email: bbergmann@parrishlaw.com

COUNSEL FOR PETITIONER

APPENDIX – TABLE OF CONTENTS

APPENDIX A..................................................................... 1a

Redacted Indictment in the United States District Court

for the Southern District of Iowa charging Emiliano

Nava Munoz in Criminal Case No. 4:23-cr-00064-003,

ECF Doc. No. 2

APPENDIX B..................................................................... 7a

Judgment entered July 20, 2023, United States v. Avontae

Lamar Tucker, S.D. Iowa No. 4:23-cr-00064-003, ECF Doc.

No. 23

APPENDIX C................................................................... 15a

Opinion of the U.S. Court of appeals for the Eighth Circuit,

United States v. Munoz, 134 F. 4th 539 (8th Cir. 2025)

Case 4:23-cr-00064-SMR-WPK

1a

Document 23

Filed 04/18/23

Page 1 of 6

Case 4:23-cr-00064-SMR-WPK

2a

Document 23

Filed 04/18/23

Page 2 of 6

Case 4:23-cr-00064-SMR-WPK

3a

Document 23

Filed 04/18/23

Page 3 of 6

Case 4:23-cr-00064-SMR-WPK

4a

Document 23

Filed 04/18/23

Page 4 of 6

Case 4:23-cr-00064-SMR-WPK

5a

Document 23

Filed 04/18/23

Page 5 of 6

Case 4:23-cr-00064-SMR-WPK

6a

Document 23

Filed 04/18/23

Page 6 of 6

7a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 1 of 8

AO 245B (Rev. 09/19) Judgment in a Criminal Case

6KHHW

v1

81,7('67$7(6',675,&7&2857

SOUTHERN DISTRICT OF IOWA

JUDGMENT IN A CRIMINAL CASE

81,7('67$7(62)$0(5,&$

v.

&DVH1XPEHU 4:23-cr-00064-003

Emiliano Nava Munoz

8601XPEHU 48563-380

Benjamin David Bergmann and Alexander Smith

'HIHQGDQW¶V$WWRUQH\

THE DEFENDANT:

✔SOHDGHGJXLOW\WRFRXQW V

G

One, Four, and Six of the Superseding Indictment filed on April 20, 2023.

G SOHDGHGQRORFRQWHQGHUHWRFRXQW V

ZKLFKZDVDFFHSWHGE\WKHFRXUW

G ZDVIRXQGJXLOW\RQFRXQW V

DIWHUDSOHDRIQRWJXLOW\

The defendant is adjudicated guilty of these offenses:

Title & Section

?

21 U.S.C. §§ 841(a)(1),

Nature of Offense

Offense Ended

Count

Conspiracy to Distribute 50 Grams or More of Actual Methamphetamine

03/30/2023

1s

Distribution of 50 Grams or More of Actual Methamphetamine

01/31/2023

4s

841(b)(1)(A), 846

21 U.S.C. § 841(a)(1),

841(b)(1)(A)

✔See additional count(s) on page 2

7KHGHIHQGDQWLVVHQWHQFHGDVSURYLGHGLQSDJHV 3 WKURXJK 8

6HQWHQFLQJ5HIRUP$FWRI

RIWKLVMXGJPHQW The sentence is impRVHGSXUVXDQWWo the

G 7KHGHIHQGDQWKDVEHHQIRXQGQRWJXLOW\RQFRXQW V

G &RXQW V

G LV

G DUHdismiVVHGRQWKHPRWLRQRIWKH8QLWHG6WDWHV

It is ordered that the defendant must notify the United States Attorney for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,

the defendant must notify the court and United States attorney of material changes in economic circumstances.

March 11, 2024

'DWHRI,PSRVLWLRQRI-XGJPHQW

Signature of Judge

Stephanie M. Rose, Chief U.S. District Judge

1DPHRI-XGJH7LWOHRI-XGJH

March 11, 2024

'DWH

8a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 2 of 8

AO 245B (Rev. 09/19)

v1

Judgment in a Criminal Case

Sheet 1A

Judgment Page: 2 of 8

DEFENDANT: Emiliano Nava Munoz

CASE NUMBER: 4:23-cr-00064-003

ADDITIONAL COUNTS OF CONVICTION

Title & Section ?

Nature of Offense

21 U.S.C. § 841(a)(1),

Distribution of 50 Grams or More of Actual Methamphetamine

841(b)(1)(A)

Offense Ended

Count

02/23/2023

6s

9a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 3 of 8

AO 245B (Rev. 09/19)

v1

Judgment in a Criminal Case

Sheet 2 — Imprisonment

Judgment Page: 3 of 8

DEFENDANT: Emiliano Nava Munoz

CASE NUMBER: 4:23-cr-00064-003

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a

total term of:

280 months as to each of Counts One, Four, and Six of the Superseding Indictment filed on April 20, 2023, to be served concurrently.

✔

G The court makes the following recommendations to the Bureau of Prisons:

That the defendant be made eligible to participate in the 500-hour Residential Drug Abuse Treatment Program (RDAP) and have the

opportunity to participate in vocational training in carpentry.

✔ The defendant is remanded to the custody of the United States Marshal.

G

G The defendant shall surrender to the United States Marshal for this district:

G at

G a.m.

G p.m.

on

G as notified by the United States Marshal.

G The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

G before

on

G as notified by the United States Marshal.

G as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

a

to

, with a certified copy of this judgment.

UNITED STATES MARSHAL

By

DEPUTY UNITED STATES MARSHAL

10a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 4 of 8

AO 245B (Rev. 09/19)

v1

Judgment in a Criminal Case

Sheet 3 — Supervised Release

DEFENDANT: Emiliano Nava Munoz

CASE NUMBER: 4:23-cr-00064-003

Judgment Page: 4 of 8

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of :

Five years as to each of Counts One, Four, and Six of the Superseding Indictment filed on April 20, 2023, to be served concurrently.

MANDATORY CONDITIONS

1.

2.

3.

4.

5.

6.

7.

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

G The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (check if applicable)

G You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of

restitution. (check if applicable)

✔You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

G

G You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.)

as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you reside, work,

are a student, or were convicted of a qualifying offense. (check if applicable)

G You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

11a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 5 of 8

AO 245B (Rev. 09/19)

v1

Judgment in a Criminal Case

Sheet 3A — Supervised Release

Judgment Page: 5 of 8

DEFENDANT: Emiliano Nava Munoz

CASE NUMBER: 4:23-cr-00064-003

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. If you plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of

becoming aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscourts.gov.

Defendant's Signature

Date

12a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 6 of 8

AO 245B (Rev. 09/19)

v1

Judgment in a Criminal Case

Sheet 3D — Supervised Release

DEFENDANT: Emiliano Nava Munoz

CASE NUMBER: 4:23-cr-00064-003

Judgment Page: 6 of 8

SPECIAL CONDITIONS OF SUPERVISION

At the completion your term of imprisonment, you must be surrendered to the custody of the U.S. Immigration and Customs

Enforcement for removal proceedings consistent with the Immigration and Nationality Act. If removed, you must not reenter the

United States without the prior written permission of the Undersecretary for Border and Transportation Security. The term of

supervised release will be non-reporting while you are residing outside the United States. If you reenter the United States within the

term of supervised release, you must report to the nearest U.S. Probation Office within 72 hours of your arrival.

If not deported, you must submit to a mental health evaluation. If treatment is recommended, you must participate in an approved

treatment program and abide by all supplemental conditions of treatment. Participation may include inpatient/outpatient treatment

and/or compliance with a medication regimen. You will contribute to the costs of services rendered (co-payment) based on ability to

pay or availability of third party payment.

If not deported, you must participate in a program of testing and/or treatment for substance abuse, as directed by the Probation Officer,

until such time as the defendant is released from the program by the Probation Office. At the direction of the probation office, you must

receive a substance abuse evaluation and participate in inpatient and/or outpatient treatment, as recommended. Participation may also

include compliance with a medication regimen. You will contribute to the costs of services rendered (co-payment) based on ability to

pay or availability of third party payment. You must not use alcohol and/or other intoxicants during the course of supervision.

If not deported, you must not patronize business establishments where more than fifty percent of the revenue is derived from the sale of

alcoholic beverages.

If not deported, you will submit to a search of your person, property, residence, adjacent structures, office, vehicle, papers, computers

(as defined in 18 U.S.C. § 1030(e)(1)), and other electronic communications or data storage devices or media, conducted by a U.S.

Probation Officer. Failure to submit to a search may be grounds for revocation. You must warn any other residents or occupants that

the premises and/or vehicle may be subject to searches pursuant to this condition. An officer may conduct a search pursuant to this

condition only when reasonable suspicion exists that you have violated a condition of your release and/or that the area(s) or item(s) to

be searched contain evidence of this violation or contain contraband. Any search must be conducted at a reasonable time and in a

reasonable manner. This condition may be invoked with or without the assistance of law enforcement, including the U.S. Marshals

Service.

13a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 7 of 8

AO 245B (Rev. 09/19)

v1

Judgment in a Criminal Case

Sheet 5 — Criminal Monetary Penalties

DEFENDANT: Emiliano Nava Munoz

CASE NUMBER: 4:23-cr-00064-003

Judgment Page: 7 of 8

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

G Pursuant to 18 U.S.C. § 3573, upon the motion of the government, the Court hereby remits the defendant's Special Penalty

Assessment; the fee is waived and no payment is required.

Fine

Assessment

Restitution

TOTALS $ 300.00

$ 0.00

$0.00

G The determination of restitution is deferred until

JVTA Assessment**

AVAA Assessment*

$ 0.00

$ 0.00

. An Amended Judgment in a Criminal Case (AO 245C) will be entered

after such determination.

G The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid

before the United States is paid.

Name of Payee

Restitution Ordered

Total Loss***

TOTALS

$0.00

Priority or Percentage

$0.00

G

Restitution amount ordered pursuant to plea agreement $

G

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

G

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

G the interest requirement is waived for the

G the interest requirement for the

G fine

G fine

G restitution.

G restitution is modified as follows:

*Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed

on or after September 13, 1994, but before April 23, 1996.

14a

Case 4:23-cr-00064-SMR-WPK Document 258 Filed 03/11/24 Page 8 of 8

AO 245B (Rev. 09/19)

v1

Judgment in a Criminal Case

Sheet 6 — Schedule of Payments

Judgment Page: 8 of 8

DEFENDANT: Emiliano Nava Munoz

CASE NUMBER: 4:23-cr-00064-003

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A

✔ Lump sum payment of $ 300.00

G

G not later than

✔ in accordance

G

G C,

due immediately, balance due

G D,

G

, or

E, or

B

G Payment to begin immediately (may be combined with

C

G Payment in equal

D

G Payment in equal

✔ F below; or

G

G C,

G D, or

G F below); or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of this judgment; or

(e.g., weekly, monthly, quarterly) installments of $

over a period of

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a

term of supervision; or

E

G Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

F

✔ Special instructions regarding the payment of criminal monetary penalties:

G

All criminal monetary payments are to be made to:

Clerk’s Office, United States District Court, P.O. Box 9344, Des Moines, IA 50306-9344.

While on supervised release, you shall cooperate with the United States Probation Office in developing a monthly payment plan,

which shall be subject to the approval of the Court, consistent with a schedule of allowable expenses provided by the United

States Probation Office.

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during

the period of imprisonment. All crimnal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate

Financial Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

G Joint and Several

Case Number

Defendant and Co-Defendant Names

(including defendant number)

Total Amount

Joint and Several

Amount

Corresponding Payee,

if appropriate

G The defendant shall pay the cost of prosecution.

G The defendant shall pay the following court cost(s):

✔ The defendant shall forfeit the defendant’s interest in the following property to the United States:

G

approximately $111,050 in United States currency, as described in the Motion for Preliminary Order of Forfeiture filed on

February 9, 2024.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment,

(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of

prosecution and court costs.

15a

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 24-1573

___________________________

United States of America

Plaintiff - Appellee

v.

Emiliano Nava Munoz

Defendant - Appellant

___________________________

No. 24-1574

___________________________

United States of America

Plaintiff - Appellee

v.

Ashley Chacon

Defendant - Appellant

___________________________

No. 24-1670

___________________________

United States of America

Plaintiff - Appellee

Appellate Case: 24-1573

Page: 1

Date Filed: 04/15/2025 Entry ID: 5506451

16a

v.

Valentin Nava Munoz

Defendant - Appellant

____________

Appeals from United States District Court

for the Southern District of Iowa - Central

____________

Submitted: March 20, 2025

Filed: April 15, 2025

____________

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

____________

BENTON, Circuit Judge.

Ashley Chacon pled guilty to possession with intent to distribute 50 grams or

more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).

Emiliano Nava Munoz and Valentin Nava Munoz pled guilty to conspiracy to

distribute, and to distribution of 50 grams or more of meth in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846. The district court 1 sentenced Chacon,

Emiliano, and Valentin to 60, 280, and 180 months in prison, respectively. They

appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Suspecting drug trafficking, an officer stopped Chacon for speeding. The

officer asked about her rental car, travel plans, and the traffic violation. Chacon

joined the officer in his patrol car, where he asked more questions while typing on

1

The Honorable Stephanie M. Rose, Chief Judge, United States District Court

for the Southern District of Iowa.

-2Appellate Case: 24-1573

Page: 2

Date Filed: 04/15/2025 Entry ID: 5506451

17a

his computer. Within about five minutes and twenty seconds, another officer

arrived. His drug-detection dog performed an open-air sniff. The dog alerted at the

rear of the car. The dog made brief contact with the car’s exterior. While the first

officer completed the write-up, the second officer informed Chacon of the alert. She

responded that the car contained a “little bit” of cocaine. The officers searched the

car, finding over 50,000 grams of meth.

Chacon challenges the district court’s denial of her motion to suppress

evidence from the car search. “We review the district court’s findings of fact under

the clearly erroneous standard, and the ultimate conclusion of whether the Fourth

Amendment was violated is subject to de novo review.” United States v. Holly, 983

F.3d 361, 363 (8th Cir. 2020). “We will reverse a finding of fact for clear error only

if, despite evidence supporting the finding, the evidence as a whole leaves us with a

definite and firm conviction that the finding is a mistake.” Id. (cleaned up).

Chacon argues the traffic stop was impermissibly extended. An officer may

make “ordinary inquiries incident to the traffic stop,” such as “checking the driver’s

license, determining whether there are outstanding warrants against the driver, and

inspecting the automobile’s registration and proof of insurance.” Rodriguez v.

United States, 575 U.S. 348, 355 (2015) (cleaned up), applying Illinois v. Caballes,

543 U.S. 405, 408 (2005). “An officer also may request that the driver sit in the

patrol car to answer questions and may ask questions about his itinerary.” United

States v. Englehart, 811 F.3d 1034, 1040 (8th Cir. 2016) (cleaned up). But “law

enforcement cannot unlawfully extend a traffic stop to allow a drug-sniffing dog to

check for narcotics after the traffic violation has already been addressed.” United

States v. Mosley, 878 F.3d 246, 253 (8th Cir. 2017). “Authority for the seizure thus

ends when tasks tied to the traffic infraction are—or reasonably should have been—

completed.” Rodriguez, 575 U.S. at 354.

The officer’s questions here were “ordinary inquiries.” He worked to address

the traffic violation before and during the sniff, taking a reasonable time to complete

the related tasks. The district court did not clearly err by finding “the traffic stop

-3Appellate Case: 24-1573

Page: 3

Date Filed: 04/15/2025 Entry ID: 5506451

18a

was not prolonged beyond the time reasonably required to complete the original

purpose of the stop.” Because the stop was not impermissibly extended, it did not

violate the Fourth Amendment.

Chacon argues the dog’s contact with the car was an unlawful trespass, thus

an unreasonable search. “The use of a well-trained narcotics-detection dog . . .

during a lawful traffic stop, generally does not implicate legitimate privacy

interests.” Caballes, 543 U.S. at 409. “Absent police misconduct, the instinctive

actions of a trained canine do not violate the Fourth Amendment.” United States v.

Lyons, 486 F.3d 367, 373 (8th Cir. 2007) (holding a drug dog sticking his head

through an open window was not a search because the dog did so “on his own” and

“was not directed” to do so).

The district court did not clearly err by finding “no convincing evidence to

show that the trooper directed the drug dog to make any physical contact with the

vehicle.” “[V]ideo footage instead supports the Government’s position that the drug

dog acted instinctively when the points of contact were made.” Because the dog

acted instinctively, his contact with the car did not violate the Fourth Amendment.

True, since Lyons, this court has cast doubt on the dog-instinct versus officerconduct distinction because “the subjective intent of police officers is almost always

irrelevant to whether an action violates the Fourth Amendment.” United States v.

Pulido-Ayala, 892 F.3d 315, 319 (8th Cir. 2018), citing Ashcroft v. al-Kidd, 563

U.S. 731, 736–37 (2011). Nevertheless, when, as here, “the dog’s alert alone,

without” the instinctive act “would have given [officers] probable cause to search .

. . the inevitable discovery doctrine justifies[s] admitting evidence.” Id.

II.

Emiliano challenges enhancements to his sentence. The court reviews “de

novo the legal conclusions a district court reaches in order to apply an enhancement

for purposes of calculating an advisory guidelines range . . . while factual findings

-4Appellate Case: 24-1573

Page: 4

Date Filed: 04/15/2025 Entry ID: 5506451

19a

underpinning the enhancement are reviewed for clear error.” United States v.

Collins, 754 F.3d 626, 629 (8th Cir. 2014) (cleaned up).

Emiliano disputes the district court’s application of an enhancement for

maintaining the premises of King Avenue and Amherst Street. U.S.S.G.

§ 2D1.1(b)(12) imposes a two-level enhancement “[i]f the defendant maintained a

premises for the purpose of manufacturing or distributing a controlled substance.”

Emiliano contends he used King Avenue for lawful purposes—as his primary

residence—never using the premises for distribution purposes. Drug trafficking

must be “one of the defendant’s primary or principal uses” of the property, rather

than “incidental or collateral uses” for this enhancement to apply. U.S.S.G.

§ 2D1.1(b)(12) cmt. n.17. Rather than compare the “frequency of lawful and

unlawful uses in this type of case,” this court applies § 2D1.1(b)(12) “when a

defendant uses the premises for the purpose of substantial drug-trafficking activities,

even if the premises was also her family home at the times in question.” United

States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012). In Miller, a defendant used the

premises as her family home, while also conducting “at least three controlled buys”

and “accepting payments that she knew were for methamphetamine purchases” on

the property. Id. at 706. Because she “used the premises for the purpose of actively

participating” in drug manufacturing or distribution, the enhancement applied. Id.

Emiliano used King Avenue to: store $115,000 of drug proceeds and a distributionquantity of cocaine, and try to recruit an undercover officer there. These substantial

drug-trafficking activities support the enhancement, despite King Avenue also

serving as Emiliano’s residence.

Emiliano contends he did not maintain or control access to Amherst Street.

“Among the factors the court should consider in determining whether the defendant

‘maintained’ the premises are (A) whether the defendant held a possessory interest

in (e.g., owned or rented) the premises and (B) the extent to which the defendant

controlled access to, or activities at, the premises.” U.S.S.G. § 2D1.1(b)(12) cmt.

n.17. In Garcia, the enhancement applied to a defendant without a possessory

interest because he had “free access to the premises” and handled chores, including

-5Appellate Case: 24-1573

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mowing the lawn and taking out the trash. United States v. Garcia, 774 F.3d 472,

475 (8th Cir. 2014). The individual responsible for rent and utilities “was rarely at

the premises.” Id. Likewise, Emiliano freely accessed the property. During months

of surveillance, law enforcement saw only Emiliano and Valentin entering the

premises (except once when they saw Emiliano’s “paramour”). Emiliano visited the

“stash house” immediately before multiple controlled buys to pick up drugs. His

defense that he did not mow the lawn or take out the trash is unavailing (particularly

when nobody lived there). The district court did not clearly err by concluding

Emiliano “most actively control[led] and access[ed]” Amherst Street. Thus, he

“maintained drug premises at two locations; not only the Amherst location, but also

his own residence on King Avenue.”

Emiliano disputes the district court’s application of a role enhancement.

U.S.S.G. § 3B1.1(b) imposes a three-level enhancement “[i]f the defendant was a

manager or supervisor (but not an organizer or leader) and the criminal activity

involved five or more participants or was otherwise extensive.” “Factors the court

should consider include the exercise of decision-making authority, the nature of

participation in the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of participation

in planning or organizing the offense, the nature and scope of the illegal activity, and

the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1(b) cmt.

n.4. “We have defined the terms ‘manager’ and ‘supervisor’ quite liberally, holding

that a defendant can be subject to this enhancement for having managed or

supervised only one other participant in the criminal conspiracy.” Garcia, 774 F.3d

at 476 (cleaned up).

Evidence of Emiliano’s role included an undercover officer’s testimony that

Emiliano directed the “higher-level” agenda; recordings of Emiliano trying to recruit

accomplices; and a shoebox of cash with a note allocating a larger share of the fruits

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to Emiliano. The district court did not clearly err by finding Emiliano “was a

manager or supervisor of a criminal activity that involved five or more

participants.” 2

III.

Like Emiliano, Valentin challenges his sentence based on the district court’s

application of a role enhancement. See U.S.S.G. § 3B1.1(b). “There can, of course,

be more than one person who qualifies as a leader or organizer of a criminal

association or conspiracy.” USSG § 3B1.1 cmt. n.4. “The manager or supervisor

enhancement may apply even if the management activity was limited to a single

transaction.” United States v. Lopez, 431 F.3d 313, 318 (8th Cir. 2005). In at least

one instance, Valentin directed Emiliano to complete a transaction, advising him

about the amount of meth and meeting location. Further, Valentin “repeatedly tried

to recruit others into the offense.” The district court appropriately enhanced his

sentence.

*******

The judgments are affirmed.

______________________________

2

The district court correctly found that the conspiracy involved at least five

participants: Emiliano, Valentin, Chacon, Jesus Morales Murillo, Angel Donato

Montoya, and Armando Garnica Aguilera.

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