from the United States District Court for the Northern
District of Texas
DENNIS, ELROD, and GRAVES, Circuit Judges.
E. GRAVES, JR., Circuit Judge.
appeal, Steve Cuellar Zuniga first challenges the district
court's denial of his motion to suppress evidence
obtained during a warrantless search of his person and the
vehicle within which he rode as a passenger. Second, Zuniga
objects to his career offender sentence under U.S.S.G §
4B1.2 on the ground that its identically-worded residual
clause was held unconstitutional by the Supreme Court in
Johnson. Third, Zuniga argues that his career
offender sentence is additionally infirm because his prior
conviction for delivery of a controlled substance cannot
serve as a predicate offense for the enhancement. For the
reasons that follow, we AFFIRM the district court's
denial of Zuniga's suppression motion, but we VACATE
Zuniga's sentence, and REMAND for resentencing.
March 2014, the San Angelo Police Department
("SAPD") and the Texas Department of Public Safety
("DPS"), based on a tip from a cooperating
defendant, combined efforts to interdict a traffic stop which
confirmed-via the warrantless search of Steve Cuellar
Zuniga's person and the vehicle within which he rode as a
passenger-that Zuniga was a methamphetamine supplier.
the cooperating defendant agreed to participate in a
controlled buy, the two teams formulated a plan: the SAPD-led
team would conduct surveillance on Zuniga's residence,
while DPS officers surveilled the anticipated methamphetamine
delivery area. While surveilling Zuniga's residence,
Detective Eddie Chavarria observed a porch light come on and
a man emerge from the house and approach the truck while
shining a flashlight. Moments later, another person emerged,
and Detective Chavarria observed the duo conduct what
appeared to be a vehicle inspection: one individual inspected
the vehicle while the other tested the emergency flashers,
left and right turn signals, brake lights, and the high
beams. Detective Chavarria immediately relayed this
information to other officers.
minutes later, the vehicle left Zuniga's residence and
Detective Chavarria decided to follow the vehicle.
Approximately one block from the house, he witnessed the
vehicle fail to signal for 100 feet continuously before
turning left, in violation of Texas transportation
He immediately informed other officers they had grounds to
stop the vehicle. When none of his fellow officers made the
stop, Detective Chavarria continued to trail the vehicle.
After driving approximately 18 blocks, Zuniga's vehicle
pulled up to a convenience store and parked in a
"disabled only" parking space. Detective
Chavarria radioed the truck's location and reported the
potential parking violation.
David Egger heard Detective Chavarria's report and drove
past the area. Sergeant Egger then instructed Detective Mark
Medley to walk in front of the truck to see whether a
disabled parking placard hung from the rear-view mirror.
Detective Medley reported back that he had observed
something hanging from the rear-view mirror, though
he could not be sure that it was the required parking
on this information, Sergeant Egger asked Officer Cody Pruit,
who had been notified at the start of his shift that his
assistance might be needed later, to stop the vehicle shortly
after it had left the parking lot. Officer Pruit- who later
testified he only stopped the truck at Sergeant Egger's
instruction, had not personally witnessed the alleged parking
violation and was told that Zuniga would be driving the
vehicle without a valid driver's license-effected the
stop. Zuniga was not driving; instead, Angela Favila drove as
Zuniga rode along as a passenger. After dispatch revealed
that Favila did not have a valid driver's license and
Zuniga had two outstanding city warrants, both were arrested.
A subsequent search of Zuniga's person yielded a plastic
bag of methamphetamine. While searching Zuniga's vehicle,
officers discovered a backpack containing more
methamphetamine, a nylon holster, a semiautomatic pistol,
Mexican Mafia-affiliated paperwork, and two cell phones.
moved to suppress all evidence stemming from the traffic
stop. The district court denied Zuniga's motion,
reasoning that both traffic violations witnessed by Detective
Chavarria were imputed to Officer Pruit under the collective
knowledge doctrine, which provided him reasonable suspicion
and justification for stopping the vehicle. Zuniga was
subsequently charged by a federal grand jury with four
counts. He entered a conditional guilty plea only to one
count of Possession with Intent to Distribute 500 Grams or
More of Methamphetamine and Aiding and Abetting, in violation
of 21 U.S.C. § 841(a)(1), 841(b)(1)(A)(viii), and 18
U.S.C. § 2, preserving his right to challenge the
sentencing, the district court applied U.S.S.G. §
4B1.1's career offender enhancement for Zuniga's two
prior felony convictions of (1) evading arrest and (2)
delivery of a controlled substance, finding that they
satisfied § 4B1.2's definitions of "crime of
violence" and "controlled substance offense"
respectively. Based on the applicable Guidelines range of 262
to 327 months' imprisonment, the district court imposed a
sentence of 327 months' imprisonment with five years'
supervised release. Zuniga timely appealed.
oral argument, we placed the case in abeyance to await the
outcome of the en banc decision in United States v.
Gonzalez-Longoria, No. 15-40041. Once the
Gonzalez-Longoria decision was issued, we requested
and received supplemental briefing from the parties advising
on the effect, if any, of Gonzales-Longoria on the
Court's disposition in this case. On August 24, 2016,
Zuniga moved to file another supplemental brief, this time to
address United States v. Hinkle, 832 F.3d 569 (5th
Cir. 2016), a recent panel decision by this Court concerning
the applicability of § 4B1.1 to the same Texas drug
offense of which Zuniga had been convicted. We granted
Zuniga's motion over the Government's objection and
received supplemental briefing from both parties on the
consider, first, Zuniga's challenge of the denial of his
motion to suppress evidence found during the warrantless
search following the vehicle stop. When assessing a denial of
a motion to suppress evidence, we review "factual
findings for clear error and the ultimate constitutionality
of law enforcement action de novo." United States v.
Robinson, 741 F.3d 588, 594 (5th Cir. 2014). The
evidence is viewed in the light most favorable to the
prevailing party, which in this case is the Government.
See United States v. Pack, 612 F.3d 341, 347 (5th
inquiry is two-fold. First, we must determine whether there
existed enough information to support a finding of reasonable
suspicion to stop the vehicle within which Zuniga rode as a
passenger. Second, if so, we must determine whether that
knowledge can be imputed under the collective ...