U.S. v. Rodriguez-Sanchez

• Decision Date: 03 May 1994
• Docket Number: RODRIGUEZ-SANCHE,No. 93-50198,D,93-50198
• Citation: 23 F.3d 1488
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlosefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1488

23 F.3d 1488

UNITED STATES of America, Plaintiff-Appellee, v. Carlos RODRIGUEZ-SANCHEZ, Defendant-Appellant.

No. 93-50198.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 8, 1994.

Decided May 3, 1994.

Terry R. Kolkey, Vista, CA, for defendant-appellant.

Barbara L. Major, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California

Before: WIGGINS and NELSON, Circuit Judges and REED, ^* District Judge.

Opinion by Senior District Judge REED

EDWARD C. REED, Jr., Senior District Judge:

Carlos Rodriguez-Sanchez was found guilty of possessing methamphetamine with the intent to distribute it under 21 U.S.C. Sec. 841(a)(1). Mr. Rodriguez-Sanchez appeals from conviction and the sentence imposed. Mr. Rodriguez-Sanchez argues that his stop and detention lacked reasonable suspicion and evidence discovered as a result should have been suppressed. The district court, Keep, J. presiding, denied the motion to suppress. On this basis Mr. Rodriguez-Sanchez appeals his conviction.

The sentencing court, Rhoades, J. presiding, sentenced Mr. Rodriguez-Sanchez under 21 U.S.C. Sec. 841(b)(1)(A) which mandates a minimum ten year sentence for "violation[s] of subsection (a) of this section involving ... (viii) 100 grams or more of methamphetamine." Sentence was based on the entire amount of methamphetamine, over 100 grams, not merely the amount Mr. Rodriguez-Sanchez claims he intended to distribute. Mr. Rodriguez-Sanchez claims he intended to distribute less than 100 grams. On this basis he appeals the sentence imposed.

FACTS AND PROCEEDINGS BELOW

On January 22, 1992, at approximately 7:45 A.M., Rodriguez-Sanchez drove a friend's Monte Carlo automobile northbound through the Temecula border patrol checkpoint located on California Interstate 15. Border Patrol Agent Nicodemus was observing the northbound traffic pass through the checkpoint, and at that time observed Rodriguez-Sanchez drive past while the owner of the Monte Carlo, Mr. Richard Borrego, sat in the passenger seat. A number of observations focused the agent's attention on this vehicle. The time of day, coinciding with morning commuter traffic and change of shift for Border Patrol officers is the favored time of day for smugglers to bring illegal aliens into the United States on this route. Furthermore, California Interstate 15 has a high volume of illegal alien smugglers. Initially, the agent observed two males of latin descent driving a Monte Carlo, a car known to the agent to be commonly used in border violations due to its large size and low cost. The agent further observed both men appeared rigid and that they stared straight ahead, making no eye contact. Additionally, the driver's arms were locked and gripped the steering wheel in an odd or unnatural manner. As the car passed through the checkpoint, traffic in general sped up as it went from two lanes to four. The Monte Carlo accelerated more aggressively than other cars and made several rapid lane changes as it accelerated, passed cars and exited the area rapidly.

Agent Nicodemus became suspicious and entered traffic to follow the vehicle. After catching up with the Monte Carlo, the agent pulled in behind it and Rodriguez-Sanchez immediately slowed down. The agent then pulled up alongside Rodriguez-Sanchez's, the driver's, side of the Monte Carlo, maintained this position for five to six seconds and continuously looked over at Rodriguez-Sanchez. Neither of the occupants of the Monte Carlo returned the agent's glances. They maintained their rigid posture and gazed straight ahead. The agent then pulled slightly ahead of the Monte Carlo so that he could look back at Rodriguez-Sanchez in an attempt to draw his attention and recognition. Neither of the Monte Carlo's occupants responded in any way. In Agent Nicodemus' experience, such behavior was unusual and had a high correlation to illegal activity.

At this time, Rodriguez-Sanchez very abruptly exited to the right onto the Highway 79 exit ramp. This maneuver required Rodriguez-Sanchez to cross two lanes of traffic, and to cut off cars behind him. Despite exiting at the last second from an inner lane, Rodriguez-Sanchez did not look for cars around him nor had he been looking for road signs or markers. Agent Nicodemus testified that the manner in which Rodriguez-Sanchez exited indicated an evasive maneuver and not normal driving behavior. The agent then believed he had reasonable suspicion that a border violation existed and activated the emergency gear, at which time Rodriguez-Sanchez pulled over onto the side of the exit ramp.

Pursuant to the stop, both occupants of the car were arrested and a search of the car later revealed a bag of methamphetamine hidden in the dashboard. The methamphetamine had a gross weight of 294 ¹ grams containing at least 113 grams of pure methamphetamine. An agent testified at trial that this quantity indicated it was probably for distribution. ² During questioning Rodriguez-Sanchez admitted he had placed the bag behind the dashboard and claimed he intended to share some of the methamphetamine with friends but did not intend to sell any and intended to keep the remainder for personal use.

Rodriguez-Sanchez stated that he came to possess the methamphetamine by happenstance. While getting gas, he observed two people fighting, one of whom dropped a bag which Rodriguez-Sanchez pocketed. That bag happened to contain the methamphetamine at issue. This all occurred the night before his arrest.

A pre-trial motion to suppress evidence found as a result of the original stop, including the bag of methamphetamine, was made on the basis that the agent had no reasonable suspicion for stopping Rodriguez-Sanchez. The motion was denied. The court viewed the evidence in the totality and found the agent did have reasonable suspicion to justify the stop.

A jury returned a guilty verdict for possession with intent to distribute. Rodriguez-Sanchez testified that he was a small time user but never a dealer of methamphetamine. Rodriguez-Sanchez also indicated he didn't know the exact quantity of methamphetamine in the bag and had not come to any definite intent regarding what to do with it, but intended generally to distribute only a very small amount to friends.

Rodriguez-Sanchez argued to the sentencing court that the evidence indicated he intended to distribute much less than 100 grams of methamphetamine and the sentence imposed should reflect that intent. Specifically, Rodriguez-Sanchez argued that the sentencing provisions of 21 U.S.C. Sec. 841(b)(1)(A) contemplate basing sentence only on the amount of drug which a defendant actually intended to distribute and not on the entire amount possessed, where a defendant intends to distribute only a part of the whole.

Section 841(b)(1)(A) states that

(1)(A) In the case of a violation of subsection (a) of this section involving--

(viii) 100 grams or more of methamphetamine ...

such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life....

21 U.S.C. Sec. 841(b)(1)(A) (emphasis added).

Rodriguez-Sanchez's argument is that a violation of Sec. 841(a)(1) for possession with intent to distribute involves only that quantity of drugs intended for distribution and not any quantity possessed for personal use.

The sentencing court rejected Rodriguez-Sanchez's argument and correspondingly declined to make any findings as to the amount Rodriguez-Sanchez intended to distribute. ³ The court determined all the methamphetamine was involved in the violation of Sec. 841(a)(1). This necessarily invoked the ten year mandatory minimum sentence under Sec. 841(b)(1)(A). The court determined the sentencing range under the guidelines at 97 to 121 months and clearly indicated its preference for the low range. However, because sentence was based on 113 grams of pure methamphetamine, the court held it was precluded from sentencing under the guidelines to less than the statutory ten year minimum mandated by Sec. 841(b)(1)(A). Sentence was set at 120 months confinement, the statutory mandatory minimum.

DISCUSSION

A. REASONABLE SUSPICION TO PERFORM AN INVESTIGATORY STOP

1. Standard of Review

Legal conclusions on motions to suppress evidence are reviewed de novo. United States v. Prieto-Villa, 910 F.2d 601, 604 (9th Cir.1990). Findings of fact regarding such motions or at hearing are reviewed under a more deferential clearly erroneous standard. Id. The specific question of whether reasonable suspicion existed under given facts is a legal conclusion subject to the de novo standard of review. United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989).

2. Investigatory Stops May be Made on the Basis of Reasonable Suspicion

Brief investigatory stops or detentions by border patrol agents of vehicles in the vicinity of the United States' international borders may be based on reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). Reasonable suspicion is not a mere phrase but has been given meaning such that suspicion is "reasonable" only if based on "specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle contains aliens who may be illegally in the country." Id. at 884, 95 S.Ct. at 2582. The Court listed several factors that might contribute to a finding of reasonable suspicion. Id. at 884-885, 94 S.Ct. at 2581-2582. ⁴

A gloss on this rule prohibits reasonable suspicion from being based on broad profiles which cast suspicion on entire categories of people without any individualized suspicion of the particular person to be stopped. United States v. Rodriguez, 976 F.2d 592, 596 (9th Cir.1992) opinion amended on denial of rehearing by 997 F.2d 1306 (9th Cir.1993) (amendments not relevant to our discussion). Reasonable...