U.S. v. Mendoza-Gonzalez, 03-2321.

• Decision Date: 13 April 2004
• Docket Number: No. 03-2321.,03-2321.
• Citation: 363 F.3d 788
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose MENDOZA-GONZALEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

363 F.3d 788

UNITED STATES of America, Plaintiff-Appellee, v. Jose MENDOZA-GONZALEZ, Defendant-Appellant.

No. 03-2321.

United States Court of Appeals, Eighth Circuit.

Submitted: March 9, 2004.

Filed: April 13, 2004.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of the appellant was Donna M. Schauer of Des Moines, IA.

Counsel who presented argument on behalf of the appellee was Andrew H. Kahl, AUSA, Des Moines, IA. Appearing on appellee's brief was Shannon L. Olson, AUSA, Des Moines, IA.

Before MURPHY, HEANEY, and SMITH, Circuit Judges.

MURPHY, Circuit Judge.

Jose Mendoza-Gonzalez was convicted by a jury of conspiracy to distribute methamphetamine and marijuana, possession of methamphetamine with intent to distribute, and possession of marijuana with intent to distribute. The district court¹ sentenced Mendoza-Gonzalez to 235 months imprisonment, and he appeals.² We affirm.

On February 5, 2002 Mendoza-Gonzalez was driving his semitractor in Iowa on eastbound Interstate 80 when he came to the Dallas County weigh station for trucks. He pulled into the station where Officer Kenneth Burke was on duty. Officer Burke is an Iowa Department of Transportation officer, and he noticed that the truck was not displaying the required DOT and ICC numbers or Iowa fuel tax sticker. He approached the truck and asked Mendoza-Gonzalez to bring his logbook, permits, and other paperwork into the weigh station office. Examination of the logbook revealed that Mendoza-Gonzalez had failed to retain the previous seven days of the log as required under 49 C.F.R. § 395.8. He was also unable to produce an Iowa trip permit.

Officer Burke decided to conduct a North American Standard Level II inspection of Mendoza-Gonzalez and his truck. See Commercial Vehicle Safety Alliance, Truck Inspection Program, North American Standard Level II Walk-Around Driver/Vehicle Inspection Procedure (2004), available at http://www.cvsa.org/programs/inspection_levels.html; see also 49 C.F.R. § 350.105. Burke has been certified by the Federal Motor Carrier Safety Administration to perform inspections, and he later testified that there are three levels of inspection to which trucks are routinely subjected at weigh stations. A level III Driver/Credential Inspection involves examination of the paperwork associated with the truck, the driver's license, registration, logbook, and permits. A Level II Walk-Around Driver/Vehicle Inspection is inclusive of the Level III inspection, but the officer also inspects all safety equipment that can be examined without physically getting under the vehicle, such as lights, tires, emergency equipment, and safety belts. A Level I North American Standard inspection is inclusive of the Level II and III inspections, but also includes an examination of equipment that can only be checked from underneath the truck, such as the brake cables and exhaust system. Officer Burke testified at the suppression hearing that officers at weigh stations generally perform a Level I or Level II inspection unless extremely inclement weather makes only a Level III inspection of the driver and paperwork practical. The weather conditions were not extreme at the time Mendoza-Gonzalez's truck was inspected.

Officer Burke testified that as he walked with Mendoza-Gonzalez from the weigh station back to the truck to perform the Level II inspection, he asked him whether there was anyone else in the truck or any prohibited items, such as weapons, narcotics, alcohol, or radar detectors. Mendoza-Gonzalez replied that his brother was inside but that there were none of the items Burke had mentioned. Burke testified that he routinely requests a driver's consent to search his truck because consent permits an officer to go beyond the standard inspection and to look inside the driver's personal belongings for illegal items such as radar detectors or weapons. He testified that he asked whether Mendoza-Gonzalez would mind if he searched the truck. Mendoza-Gonzalez responded "yes" and "I have nothing to hide." Mendoza-Gonzalez testified differently. He said Officer Burke never asked if he could search the truck and that he specifically told Burke not to enter the cab because his brother was resting in the sleeper berth. Officer Burke testified that after their conversation Mendoza-Gonzalez summoned his brother out of the truck, and he commenced the inspection.

Officer Burke testified that immediately upon entering the truck he detected strong odors of marijuana and dryer sheets. In his prior position with the Madison County Sheriff Department where he worked in drug interdiction, Burke had learned that dryer sheets were frequently used by drug traffickers to mask the smell of marijuana. Because of the odors in the truck, he suspected that it either currently or recently contained marijuana. Proceeding with the Level II inspection, Officer Burke checked the sleeper area to make sure that it contained a mattress, bed linens, safety equipment, and occupant restraints as required by 49 C.F.R. § 393.76. Upon initial inspection he was unable to see any occupant restraint on top of the mattress. He lifted the mattress to see if the restraint was underneath, but he still could not find it. Burke testified that in his experience restraints sometimes slip down into the storage box under the mattress. He lifted the lid of the box to look for the restraints and saw a package about the size of a shoe box, wrapped in what appeared to be dryer sheets and clear cellophane. Officer Burke testified that based upon his training and experience he believed that the package contained marijuana.

Officer Burke took Mendoza-Gonzalez and his brother into the weigh station building. He explained to them that he had seen a suspicious package during his inspection and that he was going to investigate further. He did not arrest the brothers at that time, but he placed them both in handcuffs and returned to the truck. At this point no one had advised them of their rights under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Ron Caudle, who was unaware of what Burke had seen in the truck, was inside the weigh station where the brothers waited. After speaking with his brother in Spanish, Mendoza-Gonzalez asked Caudle if he could place a phone call. Officer Caudle asked why, and Mendoza-Gonzalez responded, "I am going to jail." The district court³ suppressed the remainder of the interchange.⁴

When Officer Burke returned to the truck he found that the cab now smelled much more strongly of marijuana. He reopened the storage compartment under the mattress and noticed what appeared to be black plastic bags lining the area under the package he had seen earlier. He pulled the bags aside and saw that there were 15 to 20 packages similar to the first one. Suspecting that the packages contained marijuana, Burke placed Mendoza-Gonzalez and his brother under arrest and contacted the Iowa Division of Narcotics Enforcement. A total of nineteen packages were in the truck. They contained 122.619 kilograms of marijuana and 445.2 grams of 57% pure methamphetamine. The packages were examined for latent fingerprints, and the wrappings were found to contain a palm print matching that of Mendoza-Gonzalez, along with prints of several unknown persons.

Several witnesses testified against Mendoza-Gonzalez at trial. His brother testified that he had first learned about the drugs when Mendoza-Gonzalez told him at the weigh station that there were 300 pounds of marijuana and six pounds of "crystal" in the truck.⁵ A jailhouse informant, Ricky Carmichael, testified that Mendoza-Gonzalez had told him that he had been taking 335 pounds of marijuana and two pounds of methamphetamine from California to Minnesota when he was arrested. Mendoza-Gonzalez had also said that the drugs were wrapped in plastic and dryer sheets and were hidden under the sleeper berth in the truck. According to Carmichael, Mendoza-Gonzalez stated that he was unconcerned about fingerprints, because he believed the drugs were wrapped too tightly in plastic to contain any usable prints. The jury also heard Mendoza-Gonzalez's incriminating statement in the weigh station that he was "going to jail."

Mendoza-Gonzalez was found guilty of all charges presented to the jury. At sentencing the court found Mendoza-Gonzalez responsible for 122.169 kilograms of marijuana and 253.77 grams of actual methamphetamine with a marijuana equivalency of 5075.4 kilograms. A total marijuana equivalency of 5198 kilograms was attributed to Mendoza-Gonzalez, and this led to a base offense level of 34 under U.S.S.G. § 2D1.1 (2002). The district court applied a two level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, after finding that Mendoza-Gonzalez had committed perjury at his suppression hearing. His illegal reentry conviction was disregarded for purposes of sentencing because the total offense level for that charge was more than nine levels lower than his total offense level for the drug charges. See U.S.S.G. § 3D1.4. His total offense level of 36, combined with his Criminal History Category of III, produced a sentencing range of 235 to 293 months. The district court sentenced Mendoza-Gonzalez at the low end of the range to 235 months.

Mendoza-Gonzalez claims that the district court erred by not suppressing the evidence found in the truck and his statement that he was "going to jail." He also argues that there was insufficient evidence to sustain his convictions for conspiracy and for possession with intent to distribute and that the district court erred by imposing an enhancement for obstruction of justice.⁶ We address each argument in turn.

Mendoza-Gonzalez claims that his Fourth Amendment rights were violated by the inspection of the compartment under the sleeper mattress in his truck. We review the district court's findings of fact for clear error and its denial of a motion to suppress...