Costa

MEMORANDUM *

Dustin Robert Costa appeals his conviction and sentence for violations of 21 *565 U.S.C. §§ 841 (a)(1), 841(b)(1)(B), and 18 U.S.C. § 924 (c)(1)(A). On February 19, 2004, a search of Costa’s residence yielded 908 marijuana plants and 8.8 pounds of processed marijuana. Police seized bags of crushed marijuana, a metal strainer, a scale, scissors, a calculator, plastic baggies, and latex gloves. In a room next to the drug processing area, the police found a loaded shotgun and several rounds of ammunition. A jury found Costa guilty and the district court sentenced him to 180 months in prison.

Costa raises several arguments on appeal: 1) the search warrants lacked probable cause; 2) the district court improperly excluded testimony under Federal Rule of Evidence 403; 3) the evidence was insufficient to convict Costa under 18 U.S.C. § 924 (c)(1)(A); 4) the district court erred by enhancing his sentence pursuant to 21 U.S.C. § 841 ; 5) the district court erred by not providing Costa “safety valve” relief; and 6) Costa’s sentence violates the Eighth Amendment. We address and deny each argument.

The totality of circumstances coupled with the anonymous tip justify that…

dissenting:

Because I disagree with the majority’s conclusion that probable cause existed for the issuance of the second and third search warrants, I must respectfully dissent.

I agree with the district court’s conclusion that the second and third searches were not supported by probable cause. Probable cause exists where “under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Luong, 470 F.3d 898, 902 (9th Cir.2006) (internal quotations and citations omitted). We have previously held that an uncorroborated anonymous tip and allegations of high energy usage are insufficient to establish probable cause. See United States v. Clark, 31 F.3d 831, 834-35 (9th Cir.1994). Although a “thermal imaging search is less intrusive than a physical search, the degree of probable cause required is not diminished merely by virtue of that fact.” United States v. Huggins, 299 F.3d 1039, 1044 (9th Cir.2002).

The second search warrant—the warrant for thermal imaging—was supported by an anonymous tip indicating that Costa had a connection with a possible indoor marijuana grow at the Mercedes…