Case: 23-10480 Document: 83-1 Page: 1 Date Filed: 07/22/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10480
____________ FILED
July 22, 2024
United States of America, Lyle W. Cayce
Clerk
Plaintiff—Appellee,
versus
David Devaney, Jr.,
Defendant—Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-213-2
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Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Jerry E. Smith, Circuit Judge:
David Devaney, Jr., was convicted of participating in a drug trafficking
conspiracy. On appeal, he challenges the denial of his motions to suppress
evidence obtained from his car and his two cell phones and incriminating
statements he made during a post-arrest interrogation. Additionally, he contests the court’s calculation of his Guidelines offense level. We affirm.
I.
David was charged with, inter alia, conspiracy to possess fifty grams
or more of methamphetamine (“meth”) with intent to distribute (count
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one), arising from his providing security for a drug trafficking scheme executed by his father, David Devaney, Sr., (“Senior”). The drug deal went
awry when Hernandez and Mejia—the parties on the opposite side of the
transaction (collectively, “buyers”)—declined Senior’s request for them to
travel to a nearby hotel room. The buyers then left—which prompted David,
Senior, and a third co-conspirator to give chase in three vehicles.
David eventually caught up to the buyers’ vehicle, forcing it to stop.
He and his co-conspirators began shooting at the buyers, injuring Mejia and
killing an innocent bystander. Later that day, officers apprehended and
arrested Mejia and Hernandez. Sometime afterward, Mejia positively identified David from a photo array as one of the shooters.
The next day, officers spotted David driving a Chevrolet Corvette and
attempted to initiate a traffic stop. David led the officers on a high-speed
chase covering approximately two miles. He then parked the Corvette, fled
on foot, and was ultimately arrested. In his post-arrest interview, David
admitted that he had provided security for the drug transaction and chased
the buyers’ car. But he claimed that he did not fire a gun.
Officers obtained warrants to search the Corvette and the two cell
phones. A search of the Corvette revealed various drugs and drug paraphernalia, including roughly 108 grams of meth. The phones contained text messages with Senior discussing distribution of meth and marihuana.
II.
David filed motions to suppress (1) the evidence discovered in the
Corvette, (2) the evidence in his two cell phones, and (3) the incriminating
statements he made in his post-arrest interview. The district court heard oral
argument on the motions and denied all three.
The parties then entered a joint stipulation of facts that established
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David’s guilt as to his conspiring to possess fifty grams or more of meth with
intent to distribute (count one). The joint stipulation, however, expressly
reserved David’s right to appeal the suppression rulings.
In a bench trial, the district court found David guilty of violating
21 U.S.C. § 841(a)(1) and (b)(1)(A). The presentence report assigned him a
final offense level of 43. Based on David’s criminal history category, the
presentence report recommended life imprisonment, which was reduced to
the statutory maximum of 40 years. The district court sentenced David to
480 months of imprisonment and four years of supervised release.
III.
David contends that the district court erred in denying David’s motions to suppress the evidence located in (A) the Corvette and the two cell
phones, as well as (B) the incriminating statements he made in his post-arrest
interview.
For denials of motions to suppress, we review “factual findings for
clear error and the ultimate constitutionality of law enforcement action
de novo.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). Evidence is viewed in the light most favorable to the prevailing party (here, the
government).
Id. A ruling on a motion to suppress “should be upheld if there
is any reasonable view of the evidence to support it.”
Id. (internal quotation
marks and citation omitted).
A. The Corvette and the Cell Phones
Warrants are reviewed under a two-part test. In the first step, we determine whether the good-faith exception to the exclusionary rule applies.
Under that exception, “evidence obtained from [a] search will not be excluded” even if “probable cause for a search warrant is founded on incorrect
information,” so long as “the officer’s reliance upon the information’s truth
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was objectively reasonable.” United States v. Cavazos, 288 F.3d 706, 709 (5th
Cir. 2024) (citations omitted).
We move to the second step only if the good-faith exception is inapplicable. There, we address “whether the magistrate had a substantial basis
for finding probable cause.” Id. “Probable cause does not require proof beyond a reasonable doubt, but only a showing of the probability of criminal
activity.” United States v. Froman,
355 F.3d 882, 889 (5th Cir. 2004) (quotation omitted).
David complains that “Detective Martin’s warrant affidavit was ‘bare
bones’ as it pertains to [his] blue Corvette.” Same too with the warrant affidavit for his two cell phones.
Specifically, he observes that the former (1) did not describe a Corvette as one of the vehicles involved in the shooting incident and (2) lacked
the requisite nexus to drug-related crimes. As to the latter affidavit, he avers
(1) that it lacked detail on the manner of his communications and (2) that the
affiant did not expressly invoke his “training and experience” with the behavior of drug dealers.
In response, the government (a) emphasizes the affidavits’ length,
(b) highlights their extensive detailing of the crimes committed, the participants, and the location and timing of the events, and (c) observes that both
were evaluated by a neutral magistrate who independently determined that
the probable cause standard had been satisfied.
The government has the better position with regard to both motions
to suppress. As a general matter, David’s averments are more germane to
attacking “the probable-cause determination itself” than to showing the applicability of the bare-bones cutout. United States v. Morton, 46 F.4th 331,
338 (5th Cir. 2022) (en banc). In other words, his contentions—even if taken
at face value—would not show that the affidavits were “bare bones.”
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That’s because an affidavit is not bare bones merely because it fails to
establish probable cause. 1 Rather, the term describes only those affidavits
that “contain wholly conclusory statements”—i.e., those that are completely
devoid of “the facts and circumstances from which a magistrate can independently determine probable cause.” Id. at 336 (quotation omitted) (emphasis added).
“Bare bones” does not describe the affidavits at issue. Unlike true
bare-bones affidavits, which “do not detail any facts” and “allege only conclusions,” id. at 337, those used to search David’s Corvette and cell phones
detailed the “crimes committed, the participants, as well as the location and
time of the events.” Thus, both affidavits “put all the relevant ‘facts and
circumstances’ before the state judge, allowing him to ‘independently determine’ if the . . . probable-cause standard had been met.” 2
Furthermore, both affidavits include sufficient detail regarding (1) the
Corvette and (2) the cell phones, thereby making it reasonable for the officers
to rely on the warrants.
(1) David was “positively identified . . . as a subject who discharged a
firearm” in the aftermath of an illegal narcotics transaction. 3 The day before,
he shot at a moving vehicle while driving. Moreover, he “attempted to evade
officers with the [Corvette].” Given his involvement in the shooting, his use
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1
Indeed, an affidavit—though presenting an impartial magistrate with a “close
call” on probable cause—may nonetheless be “far from bare bones.” Morton, 46 F.4th
at 338.
2
Morton, 46 F.4th at 337–38; see also United States v. Huerra, 884 F.3d 511, 515–16
(5th Cir. 2018).
3
United States v. Tovar, 719 F.3d 376, 385–86 (5th Cir.2013) (concluding affidavit
was “not bare bones” where it included, inter alia, a “positive identification of [the suspect] in a photo lineup”).
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of a firearm while driving, and his evading arrest, a magistrate could reasonably infer that the guns used in the shooting were inside the vehicle.
(2) David had two phones when he was arrested. Per Morton, the
presence of “multiple phones . . . can indicate that [they] are being used for
criminal activity.” 46 F.4th at 338. 4 Further, he admitted that he was involved in a scheme to sell illegal narcotics. A magistrate could thus infer that
the phones were used in furtherance of that scheme. See id. at 338 & n.3.
Additionally, the affiant stated that, “based on [his] training and experience,” “illegal narcotic transactions involving fraudulent, counterfeit[,]
or prop money . . . may escalate to shootings or homicides.” Given that the
magistrate could infer that the phones were used in the drug scheme, he
could also reasonably infer that they would contain evidence of the shootings
and homicides that followed immediately afterwards.
The affidavits were not “bare bones,” so the good-faith exception applies. See Cavazos, 288 F.3d at 709. The district court correctly denied David’s motions to suppress evidence seized from the Corvette and the two cell
phones.
B. Incriminating Statements
Miranda created a prophylactic right, based on the Fifth and Fourteenth Amendments, for an accused “to have counsel present during custodial interrogation.” Edwards v. Arizona, 451 U.S. 477, 482 (1981). Upon invoking his right to counsel, an accused “is not subject to further interrogation
by the authorities until counsel has been made available to him, unless the
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4
Accord United States v. Campos-Ayala, 105 F.4th 235, 245 (5th Cir. 2024) (en banc)
(stating that for sufficiency of the evidence in a drug-possession case, “the jury was entitled
to give any amount of weight or credence” to the fact that a defendant possessed two
phones).
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accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484–85.
But an accused’s invocation of his right to counsel must be unequivocal and unambiguous. See Berghuis v. Thompkins, 560 U.S. 370, 380–82
(2010). Further communication is “initiated” if the accused “evince[s] a
willingness and a desire for a generalized discussion about the investigation.”
Oregon v. Bradshaw,
462 U.S. 1039, 1045–46 (1983).
David contends that officers continued interrogating him despite his
four requests for counsel:
(1) David mentioned an attorney when officers began asking about the
drug deal. But, when officers then asked whether he was invoking
his right to counsel, he answered “[n]ot yet . . . I’m not asking for
an attorney yet.”
(2) David asked whether the officers would call Brian Poe, stating that
he wanted Poe’s advice. David then clarified that he wanted
merely to call Poe “as a friend”—without hiring him as his
attorney—and without ending the interview.
(3) David asked again whether there was “a way to talk to my attorney
without ending the interview.” The officers answered in the
negative.
(4) David asked a third time whether he could call Poe as a friend. The
officer responded that he would not allow David to make phone
calls at that time. David then indicated that he wanted to continue
providing information and consented to searches and forensic
testing.
The government responds that none of those requests was sufficiently
unequivocal and unambiguous. We agree. David did not invoke his right to
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counsel.
In (1) and (2), David affirmatively disclaimed his intent to invoke
counsel and his intent to retain Poe as counsel, respectively. Thus, neither
statement articulated a desire to have counsel present. Edwards, 451 U.S.
at 484–85.
Same with (3). Though David mentioned his “attorney,” he did so
only in the context of asking whether there was any way he could invoke his
right to counsel without terminating the interview. Such a procedural inquiry
is “too equivocal to constitute a clear invocation of the right to counsel.”
Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir. 2002).
Furthermore, immediately after his query, David explicitly stated that
he did not want to end the interview. That countervailing desire to continue
speaking with the officers renders ambiguous any invocation of his right to
counsel. United States v. Carrillo, 660 F.3d 914, 922–24 (5th Cir. 2011).
Lastly, in (4), David zeroes in on the officer’s stating “I’m not letting
you make no phone calls right now”—characterizing it as “[t]he most blatant
violation of [his] right to counsel.” Per the transcript, however, the officer’s
statement was made immediately after David asked whether he could call
“his attorney” “as a friend.” Context from (2) therefore indicates that
David wanted to make a personal phone call to Poe. 5 So David did not
express a desire to have counsel present. See Edwards, 451 U.S. at 484–85.
Consequently, David failed properly to invoke his right to counsel.
The district court did not err in denying his motion to suppress the statements he made during his post-arrest interrogation.
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5
In determining whether the right to counsel was invoked, we consider statements
in the context in which they were made. See Carrillo, 660 F.3d at 921–22.
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IV.
We review de novo the district court’s interpretation and application
of the Guidelines; factual findings are reviewed for clear error. See United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008).
Under U.S. Sent’g Guidelines Manual (“U.S.S.G.”)
§ 2D1.1, David’s base offense level was set at 36. Various enhancements
raised his offense level to 47, which was then reduced to 43. See U.S.
Sent’g Guidelines Manual ch. 5, pt. A, cmt. n.2. The district court
therefore imposed the statutory maximum of 40 years. Additionally, it found
that § 2D1.1’s cross-reference to U.S.S.G. § 2A1.1 applied.
David contests (a) the quantity of drugs used in calculating his base
offense level under § 2D1.1 and (b) the three-level “aggravating role” adjustment. He additionally contends that (c) the district court erred in failing to
apply a two-level reduction for acceptance of responsibility.
But none of his challenges matters if § 2D1.1’s cross-reference to
§ 2A1.1 applies. That’s because the cross-reference sets the offense level
to 43 whenever it is greater than the offense level calculated under § 2D1.1. 6
Any error external to the cross-reference would thus be harmless, as the
district court would have “(1) imposed the same sentence had it not made
the error, and (2) done so for the same reasons it gave at the prior sentencing.” United States v. Stanford, 823 F.3d 814, 845 (5th Cir. 2016) (cleaned
up).
Section 2D1.1(d)(1) cross-references § 2A1.1. As relevant here,
courts are instructed to apply § 2A1.1 if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111.” Thus, the
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6
See § 2D1.1(d)(1) (“the resulting offense level [would be] greater than that determined under [§ 2D1.1 itself]”).
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cross-reference’s applicability turns on whether the conduct is “relevant
conduct” under U.S.S.G. § 1B1.3. See Appellant 1, 56 F.4th at 392–94. 7
For David’s crime of conviction, § 1B1.3 defines relevant conduct as
“all acts and omissions described in subdivisions (1)(A) and (1)(B) above that
were part of the same course of conduct or common scheme or plan as the
offense of conviction.” “Conduct is part of a common scheme or plan if it is
substantially connected to the offense of conviction by at least one common
factor, such as common victims, common accomplices, common purpose, or
similar modus operandi.” Appellant 1, 56 F.4th at 394 (quotation omitted).
All those commonalities describe co-conspirators’ chasing after and shooting
at the buyers. So, plainly, those acts are part of the same drug scheme.
Section 1B1.3(a)(1)(B) covers “the conduct . . . of others that was:
(i) within the scope of the jointly undertaken criminal activity; (ii) in furtherance of that criminal activity; and (iii) reasonably foreseeable in connection
with that criminal activity.” All three prongs are met here.
(i)–(ii) During his post-arrest interrogation, David admitted that he
participated in the drug scheme by providing armed security. He further
admitted that he chased after the buyers’ car after the drug deal fell apart.
Though the identity of the shooter who fired the shot that killed the
innocent bystander is unknown, ample evidence shows that it was David or
his co-conspirators, as all shot at the buyers’ vehicle. Indeed, gunshot residue was found in each of the vehicles driven by David and his co-conspirators. And both his co-conspirators and Mejia advised that David discharged
his firearm at the buyers’ vehicle.
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7
Since “acts outside those underlying the offense of conviction” can be considered
“only when those acts constitute ‘relevant conduct.’” Appellant 1, 56 F.4th at 392.
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Moreover, the pursuit and shooting are consistent with the purposes
of the drug transaction. Senior stated that they gave chase “to talk to [the
buyers]”—i.e., allegedly salvage the transaction. The motive for the shooting also comports with that underlying the transaction—to get payback from
the buyers for paying with “counterfeit currency” in a prior drug
transaction. 8
(iii) Our circuit has “repeatedly observed” that “firearms are tools of
the trade of those engaged in illegal drug activities.” United States v.
Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990) (cleaned up). Given the
nature of drug trafficking, it would have been reasonably foreseeable that a
weapon would be used.
Thus, the district court could permissibly find, by a preponderance of
the evidence, 9 that the “murder . . . was reasonably foreseeable” and that
David “aided and abetted in that murder.” So it did not err in finding that
the § 2A1.1 cross-reference applied.
David responds with two objections in his opening brief. 10 (1) He
asserts that “the facts do not suggest [that the death of the innocent
bystander] was an unlawful killing with malice aforethought.” (2) He also
asseverates that “there is no evidence to suggest that [he] planned or committed a robbery.” Neither objection has merit.
(1) First-degree murder, as defined in 18 U.S.C. § 1111(a), includes
“murder . . . perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed.”
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8
See ROA.912 (“‘get [the buyers] back’ and make sure they never did it again”).
9
“The burden of proof in this respect is on the government under a preponderance
of the evidence standard.” Aguilera-Zapata, 901 F.2d at 1215.
10
Neither objection is mentioned in his reply brief.
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David does not raise any points of error regarding the government’s theory
that he and his co-conspirators “intended to effect the murder or the death
of another human being”—i.e., the buyers—when they blocked off and shot
up their vehicle.
(2) The cross-reference applies to any “relevant conduct”—not just
“robberies.” See § 1B1.3(a)(2). Consequently, § 2D1.1’s cross-reference to
§ 2A1.1 applies. 11
That cross-reference fixes David’s offense level at 43. Any higher
offense level would be reduced automatically to 43, see U.S. Sent’g
Guidelines Manual ch. 5, pt. A, cmt. n.2, and any lower offense level
would rise back to 43, see § 2D1.1(d)(1). Any other sentencing error would
have no effect on David’s offense level and is thus, definitionally, harmless
error. See Stanford, 823 F.3d at 845.
AFFIRMED.
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11
Moreover, David’s reply brief never responds to the government’s contentions
on this issue. Accordingly, he has waived any issue on appeal with respect to the cross-reference’s applicability. See Duncan v. Wal-Mart La., L.L.C., 863 F.3d 406, 408 n.2 (5th
Cir. 2017) (stating that failing to address appellees’ responsive contentions in reply briefing
is tantamount to abandonment).
12
