United States v. Christopher Perez

United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-2130 ___________________________ United States of America Plaintiff - Appellee v. Christopher Mateo Perez Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Eastern ____________ Submitted: February 18, 2022 Filed: August 18, 2022 ____________ Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges. ____________ KELLY, Circuit Judge. Christopher Perez appeals the denial of his motion to suppress, having preserved the right to do so pursuant to his conditional plea of guilty. He also appeals his sentence, challenging his classification as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and in the alternative, the calculation of his Guidelines range on other grounds. We affirm the denial of the motion to suppress. We vacate his sentence and remand for resentencing, however, because Perez does not have three prior qualifying convictions under the ACCA. I. Background In summer 2019, Davenport Police Officer Seth Farley received information from a known confidential source that Perez had a pistol and was selling drugs, and that he was living with Brontianna Hare in Apartment 10 of a Davenport, Iowa, apartment building. Officer Farley confirmed Hare’s address through a utilities check. He also knew that Perez had prior controlled substance convictions. Based on this information, Officer Farley requested a dog sniff of the apartment building. He did not seek a warrant, relying instead on an agreement between the Davenport Police Department and the apartment manager to allow police to enter the building to conduct dog sniffs in the hallways. In the early morning of August 2, 2019, Officer Brandon Kopeke took his drug-sniffing dog, Dawn, to the apartment building, entered through an unlocked back door, and walked to the second floor. Dawn did not alert at any of the second- floor apartments. On the third floor, Dawn alerted to two apartments, numbers 10 and 12, about three to six inches from the bottom seams of the doors. Each apartment door is recessed from the main hallway in an alcove. Photos taken later show shoes and a doormat in the alcove area outside Apartment 10. Officer Kopeke notified Officer Farley of the alert. Officer Farley then drafted an affidavit in support of a search warrant for Apartment 10. After a judge signed the warrant, Officer Farley surveilled the apartment building, saw Perez leave in a car, and followed him. When law enforcement tried to stop the car, Perez got out and led them on a brief foot chase, during which he dropped a bag of crack cocaine. Perez was taken into custody, and law enforcement executed the search warrant at Hare’s apartment, finding crack cocaine, marijuana, drug paraphernalia, and a pistol. During questioning, Perez admitted to having a firearm. -2- On November 6, 2019, Perez was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Perez filed a motion to …

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