U.S. v. Vasquez

• Decision Date: 11 July 2002
• Docket Number: No. 01-40794.,01-40794.
• Citation: 298 F.3d 354
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cristobal VASQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 354

298 F.3d 354

UNITED STATES of America, Plaintiff-Appellee, v. Cristobal VASQUEZ, Defendant-Appellant.

No. 01-40794.

United States Court of Appeals, Fifth Circuit.

July 11, 2002.

Mitchel Neurock, Laredo, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Def., Timothy William Crooks, Asst. Fed. Pub. Def., Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DeMOSS and PARKER, Circuit Judges.

PER CURIAM:

Pursuant to a written conditional plea agreement, Cristobal Vasquez pleaded guilty to possession with intent to distribute in excess of five kilograms of cocaine. Vasquez was sentenced to 240 months imprisonment, a 10 year period of supervised release, and a $100 special assessment. On appeal, Vasquez challenges his conviction and sentence. For the reasons that follow, we affirm.

BACKGROUND

South Texas highways often serve as corridors for illegal immigration and drug-trafficking activity originating in Mexico. In an effort to stem these illegal activities, the United States Border Patrol has established checkpoints along the highways leading from border towns to the state's interior. Two such checkpoints are operated outside of Laredo on Highway 59 and Interstate 35. These two checkpoints can be avoided, however, by utilizing dirt roads that traverse private ranches in the area.

In January 2001, Border Patrol Agent Freeman, traveling on Highway 59 outside of Laredo, noticed a late model Ford pickup truck, bearing no commercial markings or radio equipment antennas, exit Highway 59 onto a dirt ranch road. In Agent Freeman's experience, it was uncommon for a new pickup truck to use the dirt ranch roads. Coupled with the knowledge that this particular dirt road ultimately provided egress to Highway 44 from a private ranch northeast of the Border Patrol checkpoints on Highway 59 and Interstate 35, Agent Freeman suspected that the vehicle was attempting to avoid the checkpoints.

Acting on his suspicion, Agent Freeman proceeded to the Highway 44 egress point and parked his vehicle parallel with the road. Because of his familiarity with the area, Agent Freeman knew that it takes approximately 50 minutes to travel to the Highway 44 egress point from the dirt road beginning on Highway 59 if no stops are made along the way. When the same pickup truck emerged from the dirt ranch road approximately 50 minutes later and turned on to Highway 44, Agent Freeman followed. The driver, Vasquez, repeatedly checked his rear-view mirror, indicating to Agent Freeman that he was nervous, and within a half mile, Agent Freeman stopped the pickup truck to perform an immigration inspection. An inspection of the vehicle resulted in the discovery of a false compartment in the bed of the truck containing 147 bundles of cocaine weighing 162.2 kilograms.

Vasquez was indicted by a grand jury and charged with one count of conspiracy to possess more than 5 kilograms of cocaine with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) ("Count One") and one count of possessing more than 5 kilograms of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2 ("Count Two"). Vasquez pleaded not guilty to both charges and then filed a motion to suppress the prosecution's evidence. Following an evidentiary hearing, the district court found specific and articulable facts sufficient to create reasonable suspicion and held that "Agent Freeman's actions were justified and within the scope of an investigatory detention involving the possibility of illegal drug or immigration activity." Vasquez then entered a conditional guilty plea to Count Two pursuant to a written plea agreement which preserved his right to appeal the district court's denial of the suppression motion. Subsequently, Count One of the indictment was dismissed and Vasquez was sentenced to 240 months imprisonment, a 10 year period of supervised release, and a $100 special assessment.

On appeal, Vasquez asserts that the district court erred in: 1) denying his motion to suppress the prosecution's evidence; 2) enhancing his sentence under 21 U.S.C. § 841 on the basis of a prior Texas state deferred adjudication; and 3) enhancing his sentence on the basis of a prior conviction when he was represented in the district court case by the same attorney as in the prior state case, and a conflict of interest existed because defense counsel failed to and/or was unwilling to litigate the issue of his own effectiveness in the earlier state deferred adjudication proceeding. Vasquez also contends, for the first time on appeal, that 21 U.S.C. §§ 841(a) and (b) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that the district court erred in imposing a 240 month mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A) because his prior conviction was not alleged in the indictment.

STANDARD OF REVIEW

We accept a district court's ruling on a motion to suppress based upon live testimony at a suppression hearing unless it is clearly erroneous or influenced by an incorrect view of the law. United States v. Foy, 28 F.3d 464, 474 (5th Cir.1994); United States v. Laury, 985 F.2d 1293, 1314 (5th Cir.1993). The evidence is viewed in the light most favorable to the party that prevailed at trial. Laury, 985 F.2d at 1314. Questions of law are reviewed de novo, United States v. Muniz-Melchor, 894 F.2d 1430, 1433 (5th Cir.1990), as are the district court's ultimate conclusions of Fourth Amendment reasonableness. United States v. Colin, 928 F.2d 676, 678 (5th Cir.1991). We review a district court's application of the sentencing guidelines de novo and findings of fact for clear error. United States v. Alarcon, 261 F.3d 416, 423 (5th Cir.2001). We review for plain error, issues raised for the first time on appeal. United States v. Meshack, 225 F.3d 556, 575 (5th Cir.2000).

ANALYSIS

Vasquez raises a number of issues on appeal. We address each in turn below.

A. Motion to Suppress

Vasquez contends that the district court erred in denying his motion to suppress. Specifically, Vasquez argues that Agent Freeman lacked reasonable suspicion to justify the stop of his vehicle which ultimately led to the discovery of cocaine and his conviction.

A Border Patrol agent on roving patrol may temporarily detain a vehicle for investigation only if he is "aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicle is involved in illegal activities." United States v. Inocencio, 40 F.3d 716, 722 (5th Cir. 1994) (internal quotations and citations omitted). Factors relevant in determining whether a Border Patrol agent acted with reasonable suspicion include:

(1) known characteristics of a particular area, (2) previous experience of the arresting agents with criminal activity, (3) proximity of the area to the border, (4) usual traffic patterns of that road, (5) information about recent illegal trafficking in aliens or narcotics in the area, (6) the behavior of the vehicle's driver, (7) the appearance of the vehicle, and (8) the number, appearance and behavior of the passengers.

Id. (citations omitted). No single factor is dispositive in determining whether an agent acted with reasonable suspicion. Id. Rather, each case is examined in light of the "totality of the circumstances known to the agent, and the agent's experience in evaluating such circumstances." Id. (internal quotation and citation omitted).

In the instant case, Vasquez's vehicle was observed traveling on Highway 59, a known corridor for illegal immigration and drug trafficking. The vehicle bore no commercial markings or radio equipment antennas and was consistent with the type used by traffickers. The vehicle was observed detouring on to a private dirt ranch road known for use by alien and drug traffickers to evade Border Patrol checkpoints on Highway 59 and Interstate 35. Agent Freeman did not believe the pickup truck was a ranch vehicle because in his experience, it was uncommon for a new vehicle to use the ranch roads. The elapsed time between the vehicle's detour onto the dirt road and egress onto Highway 44 beyond the checkpoints was consistent with a vehicle being driven straight through without making any stops along the way and thus having no purpose other than circumventing the Border Patrol checkpoints. Finally, Vasquez repeatedly checked his rear-view mirror and appeared nervous as Agent Freeman began to follow him on Highway 44.

Vasquez maintains, however, that the circumstances surrounding the stop of his vehicle do not add up to reasonable suspicion. In an effort to support this position Vasquez asserts that Agent Freeman articulated no facts supporting an inference that the vehicle in question came from the border, and that his presence on and use of the private dirt road did not create reasonable suspicion simply because the road was known to be used for illegal activities. Furthermore, Vasquez contends that the appearance of having driven straight through the dirt ranch road did not create reasonable suspicion because he could have been dropping something off, picking something up, or inspecting the ranches from the vehicle. Finally, Vasquez argues that the fact that his pickup truck was new and that Agent Freeman was unfamiliar with it did not create reasonable suspicion because trucks are common in ranching country, and Agent Freeman admitted that he did not know every vehicle that used the dirt ranch road.

We do not find Vasquez's arguments persuasive. Although each and every specific fact articulated at the suppression hearing, when examined alone, may be insufficient to create reasonable suspicion, when examined together, as a whole, there can be no doubt that Agent...