United States v. Guidry (817 F.3d 997, 2016)

FLAUM, Circuit Judge.

Jason Guidry was sentenced to twenty-five years in prison after he pled guilty to possessing, and distributing illegal drugs and prostituting women. On appeal, he challenges the district court’s denial of his motions to suppress evidence found, during searches of his car and his two residences; the imposition of two sentence enhancements; and the imposition of vague, ambiguous, and conflicting. conditions of supervised release. For the reasons that follow, we vacate and remand the disputed conditions of supervised release, and affirm Guidry’s conviction, prison term, and all other supervised release terms.

I. Background

A. Traffic Stop

On August 21, 2012, City of Sheboygan police officer Dustin Fickett stopped a car driving without license plates. When Fickett approached the car, he recognized Guidry, the driver. Fickett had pulled Guidry over a few months earlier and smelled a strong odor of marijuana, but after searching the car,' Fickett' did not find any illegal drugs. In the months that followed, Fickett learned that the Sheboy-gan Detective Bureau suspected that Gui-dry was using and dealing drugs.

During this' stop, Fickett detected only a faint odor of marijuana, and because'it was windy, Fickett was not sure that- the 'odor was emanating from inside Guidry’s car. As a result, Fickett did not-believe that he had probable cause to search the car.

Fickett asked Guidry for his vehicle paperwork and identification and Guidry complied. Fickett returned to his car and immediately called officer Trisha Saeger, who handled a drug-detection canine, and asked her to come to the scene. While he waited for Saeger to arrive, Fickett processed Guidry’s paperwork and called for a backup officer;

Saeger arrived about five minutes after Fickett’s call, and officer Anthony Hamilton arrived about three minutes after that. When Saeger arrived, Fickett was still ■preparing Guidry’s citation.

After checking in with Fickett and Sae-ger, Hamilton approached Guidry’s vehicle. Hamilton asked Guidry to exit the vehicle in preparation for a dog sniff, in accordance with standard department procedure. Guidry became argumentative, stated that he did not consent to a dog sniff, and remained in the car, fumbling with paperwork. Hamilton asked Guidry to show his hands and again requested that he step out of the car. This time, Guidry complied. Guidry did not close the door. Moments later, Saeger began the dog sniff.

Saeger has been working with Bud, her canine, since March 2009. Bud is trained to detect odors .of marijuana, cocaine, heroin, and methamphetamine. Bud alerts to an odor change by changing his behavior. He is also trained to “indicate,” usually by sitting, to' an odor of drugs. As soon as Bud passed the driver’s open door, Bud alerted. Soon after, Bud indicated an odor of drugs by sitting down in front of the door. Then Bud got up, approached the car, and, according to Guidry, put his head into the car through the open door.

. Fickett told Guidry that Bud had indicated at the driver’s door and Guidry admitted that he had smoked marijuana at home and still had a “half blunt” in the car. Saeger then searched the car and found the blunt, as well as a 7 UP “safe .can” containing clear plastic baggies of heroin and cocaine. Fickett arrested Gui-dry.

B. Searches of Guidry’s Residences

. On August 22, 2012, the day after Gui-dry’s arrest, Fickett and Detective Brian Bastil gave sworn testimony to a circuit court commissioner in support of a search warrant for Guidry’s residence at 1725 North 12th Street (the “12th Street residence”). Fickett described the results of the search of Guidry’s car: 15 grams of heroin, individually bagged; 4.1 grams of powder cocaine, individually bagged; and 3.9 grams of crack cocaine, individually bagged. Bastil testified that the car contained a distribution quantity of drugs worth thousands of dollars.

Bastil also provided information obtained from two confidential informants as part of an ongoing investigation of the 12th Street residence. The first informant, “CI-1,” told Bastil that Guidry was prosti- . tuting women and selling large amounts of heroin, powder cocaine, crack cocaine, marijuana, and ecstasy from the 12th Street residence. CI-1 admitted to purchasing heroin from Guidry two months earlier. A second confidential informant, “CI-2,” also disclosed that Guidry was selling heroin and other drugs from the 12th Street residence, and admitted to purchasing heroin from . Guidry at the residence within the past .two weeks. Bastil testified that Guidry identified 1725 North 12th Street as Guidry’s residence on the night of Guidry’s arrest, and that Guidry had admitted to smoking marijuana at his residence immediately before the traffic stop.

The court commissioner authorized the warrant and Bastil immediately led a search of the 12th Street residence. That search uncovered heroin, powder cocaine, a substantial amount of crack cocaine, a mason jar full of marijuana, and another safe can. A woman present at the residence during the search told Bastil that Guidry maintained another residence on Pine Street in which the exchange of sex and drugs took place. She said that Gui-dry prostituted women there, that he took about ninety percent of the money, and that he “feeds [the women] with heroin.”

A few hours later, Bastil again appeared before a court commissioner seeking a warrant to search Guidry’s Pine Street residence. He described the drugs that were found at the 12th Street residence, as well as the information he learned from the woman who was present during the search. Bastil also testified that named individual Chelsee W. and another known female had visited Guidry’s Pine Street residence within the previous three wéeks and had received heroin from Guidry in exchange for sex acts. Chelsee had told Bastil that the second female had overdosed at the residence' after receiving her heroin, a fact that Bastil independently confirmed. The court commissioner authorized the search warrant.

C. Motions to Suppress

On June 10, 2013, Guidry filed a motion to suppress evidence found in his car during the traffic stop. He . argued that because the.driver’s door was open, the police had improperly expanded the dog sniff to the interior of his ear. A magistrate judge filed a report on July 1, 2013 recommending that the district court deny Gui-dry’s motion because the officers’ decision to leave the door open was insufficient to show a desire to facilitate the dog sniff. The magistrate judge also determined that the officers were acting under a reasonable suspicion that the vehicle contained narcotics because Fickett detected a faint odor of marijuana during the traffic stop, Fickett had previously pulled Guidry over and detected a strong odor of marijuana, and Fickett had since received information that Guidry was using and dealing drugs. Gui-dry objected to the report and recommendation, but the district court adopted it on August 16,2013.

On November 22, 2013, Guidry filed 'a supplemental brief in support of his motion to suppress, arguing that the searches of his two residences were unlawful because the information used to obtain search warrants was acquired through the illegal search of his car. He contended that the traffic stop was impermissibly delayed and broadened by Fickett’s decision' to bring a drug detection dog to the scene. The magistrate judge again recommended that the district court deny Guidry’s motion, reasoning that the dog sniff did not delay the stop in any appreciable way because the canine officer arrived shortly after the stop was initiated. The’ district court adopted the magistrate judge’s report, over Guidry’s objection, on January 24, 2014.

On February 28, 2014, Guidry filed a motion to suppress the evidence discovered at his residences, again contesting the search warrants. He argued that the affidavits attached to the search warrants did not contain sufficient reliable information to establish probable cause. The magistrate judge filed a report on March 24, 2014 rejecting Guidry’s claims and the district court adopted the report, over Gui-dry’s objection, on July 10, 2014.

D. Plea Agreement

Guidry entered into a plea agreement with the government on October 10, 2014. Guidry agreed to plead guilty to Counts 6, 7, 10, and 14: three counts of interstate travel for the purposes of prostitution in violation of 18 U.S.C. § 2421, and one count of possession with intent to distribute heroin, crack, and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Guidry preserved his right to appeal the decisions denying his motions to suppress.

The plea agreement contained an attachment with sworn testimony from three witnesses — A.R.;M.M., and A.M. — supporting the three interstate travel counts. A.R. prostituted for Guidry from February to April of 2012. In her affidavit, A.R. explained that she believed Guidry loved her and that she was; his girlfriend. To elicit her participation in his , escort business, Guidry told her that men would pay thousands of dollars to, spend time with “nice females like her.” He posted an ad for her online and drove her to a hotel in Rockford where she “did dates.” She explained that she was afraid of Guidry: “[H]e’s a big guy ... and anything could happen — I was afraid that it would get physical.”

M.M. stated in her affidavit that she met Guidry in April 2012 through her boyfriend who purchased heroin from him. M.M. .had been addicted to heroin but had been clean for six months before meeting Guidry. She was a stripper and Guidry said that "she could make more money prostituting for him. Guidry took her to Rockford to prostitute and gave her heroin in return. Guidry knew M.M. was addicted to heroin and would go through withdrawal if she did not get heroin every twenty-four hours. She explained, “[Gui-dry] scared me. I always wanted to please him ... and I did not want to go through withdrawal.”

A.M. also met Guidry in April 2012 when she and a friend started going to Guidry’s house to buy heroin and crack. Guidry asked A.M. to prostitute for him and said it would be easy money. When A.M. told him she did not want to go to Rockford to prostitute, he threatened to cut off her heroin supply, so A.M. went to Rockford. She explained that she was afraid of Gui-dry because he had brutally beaten his ex-girlfriend, who was one of her friends, and because he was “very big” and “always yelling at us.”

E. Presentence Report and Sentencing

The probation office prepared a presen-tence investigation report (“PSR”) on December 23, 2014. The PSR recommended several sentencing enhancements, including a cross reference from U.S.S.G. § 2Gl.l(a) to § 2A3.1(a)(2) because Guidry caused his victims to engage in sexual acts by placing them in fear, and a two-level “vulnerable victim” enhancement under § 3Al.l(b)(l). Guidry’s final guidelines range was 210 to 262 months.

At Guidry’s sentencing hearing, the government offered the testimony of Dr. Sela-hattin Kurter, a doctor certified in psychiatry and addiction medicine. He testified about heroin’s addictive properties and explained that addicts have a powerful fear of withdrawal that causes them to “look for the drug at all costs.”

Detective Tamara Remington, the case agent for the trafficking portion of the investigation, testified about her contact with the witnesses. She explained that A.R. “has been very frightened since hearing [Guidry’s] name again.... I believe she’s gone into hiding. She’s very scared.” Remington explained that Guidry has a controlling and angry side that he used to keep A.R. prostituting for him. For example, A.R. had a violent confrontation with Guidry in 2012 when she tried to leave him. A.R. called a cab and as she entered, Guidry forcibly pulled her out. The cab driver was so concerned by Guidry’s behavior that he intervened by holding on to A.R. and calling 911. A few days later, when A.R. returned to Sheboygan after staying with her parents, her apartment had been ransacked. Allegedly, Guidry told her that he was responsible and that A.R. was going to leave this world just as she entered ii> — with nothing. Remington also interviewed the cab driver that intervened to help A.R., and he confirmed A.R.’s account and explained that he recalled the incident well because Guidry was threatening both Á.R., who he described as “petite,” and him.

Before sentencing Guidry, the district court explained that after thoroughly considering the record, the court believed that the circumstances warranted an above-guidelines sentence. The court sentenced Guidry to 299 months, or nearly twenty-five years, in prison. The district court also imposed three-year terms of supervised release for each of the four counts, all running concurrently. This appeal followed.

II. Discussion

On appeal, Guidry challenges the district court’s denial of his motions to suppress evidence found during the searches of his car and his two residences; the imposition of two sentence enhancements; and the imposition of vague, ambiguous, and conflicting conditions of supervised release. We address each of these arguments in turn.

A. Search of Guidry’s Car

Guidry contends that the district court erred by denying his first motion to suppress because the evidence discovered during the traffic stop was the product of an illegal dog sniff. Guidry does not dispute that the traffic stop was lawful and supported by probable cause. He instead argues that the officers improperly prolonged the duration of the traffic stop and violated his Fourth Amendment rights by allowing the dog to search the interior of his car. When reviewing a district court’s decision on a motion to suppress, we review findings of fact for clear error and conclusions of law de novo. United States v. Uribe, 709 F.3d 646, 649 (7th Cir.2013).

i Duration of the Traffic Stop

In arguing that the officers impermissi-bly delayed the traffic stop to conduct a dog sniff, Guidry relies on Rodriguez v. United States, in which the U.S. Supreme Court held that police cannot prolong a traffic .stop in order to conduct a dog sniff without reasonable suspicion that the vehicle contains illegal drugs. - U.S. -, 135 S.Ct. 1609, 1615-16, 191 L.Ed.2d 492 (2015).

Under Rodriguez, Guidry’s claim fails for two reasons: first, the dog sniff did not prolong the traffic stop, and second; even if it had, the officers had reasonable suspicion to believe that Guidry’s car contained illegal drugs. First, unlike the search in Rodriguez, the dog sniff did not prolong the traffic stop in any meaningful way: Saeger arrived on the scene five minutes after Fickett called her, and at that time, Fickett was still preparing Guidry’s traffic citation. As the magistrate judge observed, “most important here, at the' time when Bud ‘indicated’ that drugs were present in the vehicle, thereby providing a new justification to extend the traffic stop, Officer Fickett had yet to complete his initial mission — that is, issuing Guidry a traffic citation.”

Even if there was evidence that the officers had improperly delayed issuing Guidry’s citation, this case satisfies Rodriguez for a second reason. In Rodriguez, the Supreme Court noted that reasonable suspicion of criminal activity would justify the police in detaining the driver beyond completion of the traffic infraction. Id. at 1616. Here, when Fickett pulled Guidry over, he had reasonable suspicion to believe that Guidry had drugs in' his car. Fickett not only smelled a faint odor of marijuana, but he also recalled that he had previously stopped Guidry and smelled marijuana. Moreover, Fickett was aware that his detective bureau had evidence that Guidry was a drug user and dealer. Thus, Fickett “had reasonable suspicion of criminal activity at that point and so was justified in prolonging the stop for a reasonable time to confirm or dispel, with the dog’s assistance, his mounting ■ suspicions.” United States v. Sanford, 806 F.3d 954; 959 (7th Cir.2015) (holding that reasonable suspicion justified the officer in prolonging the stop by eight minutes, to wait for the arrival of the drug dog).

ii. Dog Sniff of the Interior of Guidry’s ■ Gar

In arguing that the police officers violated his constitutional rights by allowing Bud to intrude into the interior of his ear, Guidry relies on United States v. Winningham, in which the Tenth Circuit held that a dog sniff- violated the Fourth Amendment. 140 F.3d 1328 (10th Cir.1998). In that ease, police officers stopped a van on the reasonable suspicion that it contained illegal aliens. Despite the fact that the van was empty, the agents called in a dog. The handler observed a “just noticeable difference” in the dog’s conduct as it reached the rear of the van and unleashed the dog. Id. at 1329. When the dog reached one of the van doors that the officers had left open, it leaped into the van and methodically sniffed the interior. Eventually, the dog alerted at a rear vent that contained fifty kilograms of marijuana.

The Tenth Circuit determined that the officers’ conduct, which included opening the door, allowing the van to sit for several minutes with the door open, unleashing the dog as it neared the open door, and allowing the dog to remain in the van, suggested a desire to facilitate a dog sniff of the van’s interior.. Id. at 1331. And because the police did n