Appeal from the United States District Court for the Western District of Oklahoma, (D.C. No. CR-06-300-F).
The opinion of the court was delivered by: Lucero, Circuit Judge.
Before BRISCOE, McWILLIAMS, and LUCERO, Circuit Judges.
This case requires us to answer a question of first impression in this Circuit: Do bounty hunters constitute state actors for purposes of the Fourth Amendment when they conduct a search in the course of seeking out a bail-jumper? We conclude that bounty hunters do not qualify as state actors when, as here, they act without the assistance of law enforcement and for their own pecuniary interests.
Aaron Dale Poe was apprehended by bounty hunters after he jumped bail in an Oklahoma state criminal case. In the home where Poe was found, the bounty hunters discovered drugs, drug-related paraphernalia, and a loaded firearm. Poe was later convicted by a jury on three counts: possession of a firearm and ammunition after a previous felony conviction, possession of methamphetamine with intent to distribute, and possession of a firearm in furtherance of a drug trafficking crime. The district court sentenced Poe to 165 months' imprisonment followed by ten years' supervised release.
On appeal, Poe raises four challenges. First, he claims that the district court erred in denying his motion to suppress because the bounty hunters were state actors conducting a warrantless search in violation of the Fourth Amendment. Second, he asserts that the government presented insufficient evidence to convict him on each of the three counts. Third, he disputes the procedural reasonableness of his supervised release sentence, arguing that the district court improperly calculated the advisory Guidelines range and departed from that range without advance notice. Finally, he challenges application of an obstruction of justice enhancement based on his trial testimony. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
On August 3, 2006, a bail bonds company hired five bounty hunters to apprehend Poe for jumping bail in an Oklahoma state criminal case. The bounty hunters surveilled the home of Kim Wilson, who they believed to be Poe's girlfriend.*fn1 Around 10:30 p.m., the bounty hunters observed Wilson exit her house and drive away. Two of the bounty hunters, David DeWitt and Lawrence Sanders, followed her to the AutoZone where she worked to question her about Poe.Wilson indicated that Poe was at her home and agreed to return with DeWitt and Sanders so they would not have to kick in her door.*fn2
During this conversation, the bounty hunters obtained additional information from Wilson.First, she told them that Poe was planning to sell drugs from her house that night.Second, she disclaimed knowledge of any drugs in the house other than those Poe planned to sell.Third, she said there was a silver gun in the house.
Upon returning to the house,DeWitt and Sanders staked out the back door, while the other bounty hunters watched the front.A car pulled up and an individual, later identified asChris McGill,exited the car and walked to the back door.After McGill knocked, Poe let him in. From their position, DeWitt and Sanders were able to positively identify Poe.
DeWitt and Sanders approached the back door and observed that McGill was already leaving.As McGill opened the door to leave, DeWitt ordered him to sit on the ground.Sanders went into the home to apprehend Poe, and a struggle ensued.As Sanders wrestled Poe to ground, two pit bulls entered the room and attacked Sanders.Sanders "tased" one of the pit bulls, then both dogs retreated to another room and Poe gave up resisting.
After Poe was subdued, DeWitt observed in plain view in the same room what he believed to be methamphetamine, methamphetamine-related paraphernalia, and a black nine-millimeter pistol.DeWitt emptied the pistol's chamber and removed its magazine, both of which were loaded. Sanders then called the Oklahoma City Police Department.
Officer James Geery of the Oklahoma City Police Department responded to Sanders's call, arriving at Wilson's home shortly after 11:00 p.m.After speaking with the bounty hunters, Officer Geery advised Poe of his Miranda rights. Poe said that he understood his rights, and before Officer Geery asked him another question Poe said, "The dope and the gun are mine."
Officer Geery requested permission to search the home. Poe replied that he could not consent because it was not his home.Asked why he was at Wilson's house, Poe explained that he and Wilson dated for about a year and half, during which time he lived with her, but that they had broken up about a month earlier.He also stated that he had "finagled" a key from Wilson prior to moving out.At trial, Poe elaborated on his relationship with Wilson, explaining that after he moved out, he continued to return to the house to shower, shave, change clothes, and eat.Wilson knew that Poe had a key, and she never said or did anything to indicate that Poe lacked her permission to be there.
At the scene, Poe also admitted to Officer Geery that he sold drugs to McGill in the past and would have sold drugs to McGill that night if there had been enough time.*fn3 He reiterated that the gun and drugs belonged to him and not Wilson, and he explained that he obtained the gun two months earlier in exchange for drugs.
Officer Geery obtained verbal and written consent from Wilson to search the home.*fn4 During the search, Officer Geery discovered that the home had a video surveillance system that allowed the occupants to monitor the front porch, the driveway, and the approach to the back of the house.He also recovered physical evidence, including: the gun DeWitt had unloaded, a nine-millimeter Makarov semi-automatic pistol; eleven rounds of.380 caliber ammunition; a bag containing 6.9 grams of methamphetamine; a bag containing 2.3 grams of methamphetamine; a bag containing 3.1 grams of methamphetamine; a set of digital scales; and a boxcontaining approximately 200 Ziploc bags ranging in size from one-and-one-half to three inches squareand a set of manual scales.Upon finding this incriminating evidence, Officer Geery arrested Poe.McGill was also arrested on the basis of outstanding warrants.
Evidence establishing the above facts was presented at trial. In addition, Oklahoma City Police Officer Mark Danner testified as a drug expert.He testified that pit bulls and video surveillance are commonly employed by drug dealers.Danner also opined that the amount of drugs and related paraphernalia (scales and bags) were consistent with distribution.Finally, he described the street value of methamphetamine and explained the connection between firearms and drug transactions.
Poe presented three witnesses in addition to testifying in his own defense.*fn5
The essence of Poe's defense was that he and Wilson had been using drugs prior to Wilson's departure for work.According to Poe and his witnesses, it was Wilson who dealt drugs;Poe had been unaware that McGill was coming over that night;and the purpose of McGill's visit was to lend Wilson money, not to buy drugs.*fn6 Poe specifically denied intent to distribute drugs and possession of the firearm.
Prior to trial, Poe moved to suppress all evidence discovered by the bounty hunters on August 3.He argued that under the Fourth Amendment, the bounty hunters were state actors conducting an unreasonable warrantless search.Therefore, any evidence obtained by Officer Geery should be suppressed as the fruit of the bounty hunters' unconstitutional search.The district court denied the motion to suppress, concluding that Poe lacked Fourth Amendment standing because he had no reasonable expectation of privacy in Wilson's home.Although the issue was fully briefed, the district court explicitly declined to decide whether the bounty hunters were state actors.
In March 2007, the jury convicted Poe on three of four counts:
(1) possession of a firearm and ammunition after a previous felony conviction, in violation of 18 U.S.C. § 922(g)(1) ("Count 2"); (2) possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) ("Count 3"); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count 4").*fn7 Prior to sentencing, a probation officer prepared Poe's presentence report ("PSR").
In calculating Poe's offense level, the PSR included a two-level enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. The PSR also included calculations regarding supervised release. The probation officer calculated an advisory United States Sentencing Guidelines ("Guidelines") range of two to three years' supervised release on Count 2. § 5D1.2(a)(2); see 18 U.S.C. § 3583(b)(2) (authorizing "not more than three years" of supervised release).On Count 3, she calculated an advisory range of six years' supervised release. U.S.S.G. § 5D1.2(c); see 21 U.S.C. § 841(b)(1)(C) (mandating "at least six years" of supervised release).Finally, on Count 4, she calculated a range of three to five years' supervised release. U.S.S.G. § 5D1.2(a)(1); see 18 U.S.C. § 3583(b)(1) (authorizing "not more than five years" of supervised release).
At the sentencing hearing, the parties discussed the statutory supervised release range for Count 3.Because Poe had a conviction for a prior felony drug offense, 21 U.S.C. § 841(b)(1)(C) directed the district court to "impose a term of supervised release of at least 6 years in addition to [the] term of imprisonment." The district judge inquired as to the "top end on that."Counsel for both the government and Poe admitted they did not know the answer,*fn8 and the probation officer stated that she had not "seen a Court do more than six years when it says no less than six years on this type of case."Although the PSR reported the advisory Guidelines range was six years in accordance with 21 U.S.C. § 841(b)(1)(C),*fn9 the district court never explicitly stated what it considered to be the applicable Guidelines range.
Ultimately, the district court imposed a sentence of 165 months' imprisonment, consisting of concurrent 105-month sentences on Counts 2 and 3 and a consecutive 60-month sentence on Count 4.In addition, the district court imposed a ten-year term of supervised release, consisting of concurrent terms of three years ...