F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 22 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Nos. 02-7147 and 02-7150
(D.C. No. 02-CR-41-S)
(E.D. Okla.)
Plaintiff - Appellee,
v.
SERGIO M. GOVEA SOLORIO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Defendant-Appellant Sergio Govea Solorio appeals from his conviction and
sentence for possession of methamphetamine with intent to distribute, 21 U.S.C.
§ 841(a), (b)(1)(A), upon a conditional plea of guilty. He was sentenced as a
career offender to 262 months imprisonment to be followed by five years of
supervised release. The issues on appeal are (1) whether Mr. Solorio’s detention
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
during a traffic offense stop violated the Fourth Amendment, and (2) whether a
prior conviction for vehicular manslaughter with gross negligence could be relied
upon by the district court in sentencing Mr. Solorio. Our jurisdiction arises under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.
Background
On the afternoon of March 5, 2002, Oklahoma Narcotics Task Force Agent
Robert Rumble stopped Mr. Solorio for traveling 76 mph in a 70 mph zone on
Interstate 40 in McIntosh County. II R. at 9-11. Mr. Solorio was the driver and
only occupant of a Nissan Altima with California license plates.
At the officer’s request, Mr. Solorio exited his vehicle and sat in the patrol
car. At this point, the officer apparently said to Mr. Solorio that he was only
going to give him a verbal warning. Id. at 31. The officer then asked for a
driver’s licence, and Mr. Solorio presented one from Mexico. Id. at 13. Mr.
Solorio told the officer that he had lived in California for two years and the car
belonged to his girlfriend. Id. at 15. He also produced the vehicle’s registration
and insurance documentation. The registration and insurance showed the owner
of the vehicle to be Mojardin Rosa M. Jimenez. The insurance policy had been
updated a month earlier and also showed that Mrs. Jimenez was married.
The officer contacted dispatch to determine if Mr. Solorio had a valid
-2-
United States driver’s license and ran a radio check on whether the car was
stolen. While awaiting an answer, the officer questioned Mr. Solorio about his
travel agenda. Mr. Solorio told the officer that he had gone to Atlanta, Georgia,
for two days to visit a cousin. The officer commented about it being a short stay
for such a long trip, and Mr. Solorio replied that he was there for a week, not two
days.
The dispatcher reported that Mr. Solorio did not have a valid driver’s
license for the United States. Id. at 17. The officer also learned that the car had
not been reported stolen. Id. at 30. Mr. Solorio was informed that because he
was living in the United States, he was required to have a United States driver’s
license. The officer told Mr. Solorio, however, that he was going to cut him “a
break on the driver’s license,” and returned all of his documents, telling him that
he was free to go. Id. at 17-18.
Officer Rumble then asked Mr. Solorio if he could ask him a question, to
which Mr. Solorio responded, “Okay.” Id. at 18. The officer asked if he was
transporting illegal contraband, such as firearms or drugs. The defendant
responded, “No, I’m not. Go look.” Id. at 17. According to the officer, Mr.
Solorio then became visibly nervous. The officer had Mr. Solorio sit in the patrol
car while he searched the car, and Mr. Solorio could see the search of the vehicle.
The officer instructed Mr. Solorio to honk the horn if he needed anything. Id. at
-3-
19.
The officer testified that upon opening the passenger door of Mr. Solorio’s
vehicle, he noticed a strong odor of Bondo and fresh paint. Id. Bondo is a
substance used by auto body shops to patch and fill metal. No body work
appeared to have been done to the exterior of the car. Id. at 20. The officer also
noticed that the bolts that held the seat to the floor were scratched as if they had
been removed. Id. Through a slit or small tear in the carpet on the floor of the
car, the officer could tell that the insulation had been glued to the floor itself. Id.
Once the carpet and insulation were pulled loose, the officer saw the Bondo and
smelled the odor of fabric softener.
The officer testified that based on his training and experience, he knew that
Bondo and fabric softener are often used to mask the odor of illegal substances.
Id. at 20-21. According to the officer, in over seventy cases that he has
investigated involving false compartments used to smuggle drugs, the odor of
fabric softeners, Bondo, and fresh paint were present. Id. at 21. The officer also
testified that California, where Mr. Solorio claimed to be a resident, is a large
source of illegal drugs, and Atlanta is a target city for drug distribution. Id. at 22.
The officer indicated his suspicions were aroused also by the short duration of the
stay in Atlanta, the discrepancy in the story, the fact that the car was registered to
a married woman whom Solorio claimed was his girlfriend, Mr. Solorio’s
-4-
nervousness, and the odor in the car. Id. at 22-23.
The officer returned to his patrol car and asked Mr. Solorio about the
modifications done to the vehicle. Mr. Solorio stated that he did not understand
English. Id. at 23. The officer testified that up until this point, he had no
problems conversing with Mr. Solorio, and Mr. Solorio responded to questions in
a contextually appropriate manner. Id. at 13.
The car was then towed, and a drug sniffing dog alerted to inside the car.
Id. at 25. The car was disassembled. Concealed compartments revealed 5.9
pounds of methamphetamine and $50,497 in cash. Id. at 27.
Discussion
A. Fourth Amendment
In reviewing the denial of a motion to suppress, we accept the district
court’s findings of fact unless they are clearly erroneous. United States v. Lora-
Solano, 330 F.3d 1288, 1292 (10th Cir. 2003). We view the evidence in the light
most favorable the district court’s determination. United States v. Sparks, 291
F.3d 683, 687 (10th Cir. 2002). The ultimate question of whether Fourth
Amendment rights have been violated is an issue of law reviewed de novo. Lora-
Solano, 330 F.3d at 1292.
A routine traffic stop is a seizure within the meaning of the Fourth
-5-
Amendment. United States v. Anderson, 114 F.3d 1059, 1063 (10th Cir. 1997).
For purposes of constitutional analysis, however, it is characterized as an
investigative detention and is therefore analyzed under the principles announced
in Terry v. Ohio, 392 U.S. 1 (1968). Berkemer v. McCarty, 468 U.S. 420, 439
(1984); United States v. Caro, 248 F.3d 1240, 1244 (10th Cir. 2001).
Terry mandates a two-part inquiry. First, we determine whether the stop
was justified at its inception. Id. at 20; United States v. Neff, 300 F.3d 1217,
1220 (10th Cir. 2002). This first part of the Terry inquiry is not a matter of
dispute in this appeal. Mr. Solorio was stopped for speeding, and he does not
challenge the reasonableness of the initial traffic stop. Aplt. Br. at 9; see United
States v. Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001) (“[A] traffic stop is
valid under the Fourth Amendment if the stop is based on an observed traffic
violation or if the police officer has reasonable articulable suspicion that a traffic
or equipment violation has occurred or is occurring.”) (quotation omitted).
Second, we determine whether the officer’s actions during the detention
were “reasonably related in scope to the circumstances which justified the
interference in the first place.” Terry, 392 U.S. at 20; Neff, 300 F.3d at 1220.
Mr. Solorio does challenge the reasonableness of the officer’s detention of his car
in order to perform a driver’s license check.
An investigative detention must be temporary, lasting no longer than
-6-
necessary to effectuate the purpose of the stop, and the investigative methods
employed should be the least intrusive means reasonably available to verify or
dispel the officer’s suspicion in a short period of time. Florida v. Royer, 460 U.S.
491, 500 (1983); United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997).
During a routine traffic stop a police officer may ask questions, request and
examine a driver’s license and vehicle documentation, and run such computer
verifications as necessary to determine that the driver has a valid license and is
entitled to operate the vehicle. Wood, 106 F.3d at 945. “The officer may detain
the driver and his vehicle as long as reasonably necessary to make these
determinations and to issue a citation or warning.” Id. However, “[w]hen the
driver has produced a valid license and proof of entitlement to operate the car, the
driver must be allowed to proceed without further delay for additional
questioning.” United States v. Elliott, 107 F.3d 810, 813 (10th Cir. 1997).
On cross-examination, Officer Rumble said he was familiar with Okla. Stat.
Ann. tit. 47, § 6-102, which provides that anyone over sixteen years of age who is
properly licensed in his or her home country may operate a vehicle on Oklahoma
roads. II R. at 28. The officer also said that he had been trained that a foreign
license is valid only until the driver establishes residency in the United States, but
he was unfamiliar with California law’s residency requirements. Id. at 30.
Moreover, he had no way to verify the Mexico license over the radio. Id. at 32-
-7-
33.
Mr. Solorio argues that because he produced a valid driver’s license that
could not be verified and valid insurance and registration papers, the radio check
was not related to the purposes of the stop and stretched beyond the appropriate
scope. Mr. Solorio also argues that the purpose of the stop, to give a verbal
warning, was completed at the beginning of the stop, once the warning was given.
Thus, according to Mr. Solorio, any detention after the warning was for
investigative purposes, which exceeded the scope of the stop. We disagree.
Our cases have long held that a police officer may briefly detain individuals
to perform computer verifications on a driver’s licence and examine insurance
and registration documentation. See, e.g., United States v. Patten, 183 F.3d 1190,
1193 (10th Cir. 1999); United States v. Soto, 988 F.2d 1548, 1554 (10th Cir.
1993). Although those cases involved driver’s licenses issued by states, we see
no reason to carve out an exception for holders of foreign licenses. As Mr.
Solorio informed the officer that he had been living in California for two years, it
was entirely reasonable for the officer to determine whether a valid California
license existed for Mr. Solorio. 1
1
Because there is no dispute over the legality of the initial stop, we find Mr.
Solorio’s citation of United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir.
2000), and United States v. Lopez-Valdez, 178 F.3d 282, 288-89 (5th Cir. 1999),
unconvincing. Aplt. Br. at 11. Lopez-Soto and Lopez-Valdez held only that
where an officer’s basis for a stop proved to be an error of law, the stop was
-8-
Moreover, even assuming the five-minute detention exceeded the original
scope of the stop, we have held that during the course of a traffic stop, further
questioning and concomitant detention are permissible if the officer acquires an
objectively reasonable and articulable suspicion that the driver is engaged in
illegal activity. United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998).
Factors that contribute to the formulation of an objectively reasonable and
articulable suspicion include having no proof of ownership of the vehicle, having
no proof of authority to operate the vehicle, and inconsistent statements
concerning one’s travel itinerary. Id. (collecting cases).
We have held that “questions about travel plans are routine and may be
asked as a matter of course without exceeding the proper scope of a traffic stop.”
See United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) (quotation
omitted). Moreover, inconsistencies regarding ownership or authority to operate a
vehicle have figured prominently in our many cases upholding further
questioning. See, e.g. United States v. Fernandez, 18 F.3d 874, 879-80 (10th Cir.
1994) (The “defining characteristic of our traffic stop jurisprudence is the
defendant’s lack of . . . some . . . indicia of proof to lawfully operate and possess
the vehicle in question, thus giving rise to objectively reasonable suspicion.”).
invalid. They do not address the validity of a detention while a police officer
determines whether a foreign driver has an American license.
-9-
Here, Mr. Solorio provided vehicle documentation for a woman with a
different last name. Mr. Solorio indicated that the car belonged to his girlfriend,
but the registration indicated the car belonged to a married woman. Upon being
asked about his travel agenda, Mr. Solorio first said that he had gone to Atlanta to
visit someone for two days, but then changed his story to say that he had been
there for a week. The officer further testified that Mr. Solorio became nervous.
When evaluating these factors, we look at the totality of circumstances, and judge
an officer’s conduct in light of “common sense and ordinary human experience.”
United States v. McRae, 81 F.3d 1528, 1534 (10th Cir. 1996) (citations omitted).
Additionally, we make our determination with deference to a trained law
enforcement officer’s ability to distinguish between innocent and suspicious
circumstances. Id. We hold, therefore, that the factors provided the officer with
reasonable suspicion permitting him to detain Mr. Solorio and ask him whether he
was carrying contraband and would consent to the search of the vehicle. Based
upon the district court’s factual findings of what occurred, we hold that the
officer did not exceed the permissible scope of the stop, and the detention was not
improper.
B. Sentencing
We review a district court’s interpretation and application of the sentencing
guidelines de novo, and its factual findings for clear error. United States v.
- 10 -
Swanson, 253 F.3d 1220, 1222 (10th Cir. 2001). We view evidence underlying a
district court’s sentence, and the inferences drawn therefrom, in the light most
favorable to the district court’s determination. United States v. Conley, 131 F.3d
1387, 1389 (10th Cir. 1997).
Under U.S.S.G. § 4B1.1, a defendant is a career offender if (1) he was at
least eighteen years old at the time of the instant offense, (2) the instant offense
of conviction is a felony that is either a “crime of violence” or a controlled
substance offense, and (3) he has at least two prior felony convictions of either a
“crime of violence” or a controlled substance offense.
A “crime of violence” is defined in U.S.S.G. § 4B1.2 as:
any offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that (1) has as an element the use, attempted use,
or threatened use of physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.
The district court established that Mr. Solorio had two prior felony
convictions of either a crime of violence or a controlled substance offense,
including a 1998 California conviction for vehicular manslaughter without gross
negligence. The conviction was pursuant to Cal. Penal Code § 192(c)(3), which
encompasses “driving a vehicle in violation of Section . . . 23152 or 23153 of the
Vehicle Code and in the commission of a lawful act which might produce death,
in an unlawful manner, but without gross negligence.” Based on the facts
- 11 -
presented in court, Mr. Solorio was driving a vehicle while his blood contained
0.17 percent blood alcohol when he caused an accident resulting in the death of
another. In determining that the manslaughter conviction at issue amounted to a
crime of violence, the district court relied on the so-called “otherwise clause” of
§ 4B1.2, holding that the vehicular manslaughter “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
Mr. Solorio contends that the manslaughter statute under which he was
convicted and the evidence presented to the district court of his prior conviction
do not support a crime of violence finding. According to Mr. Solorio, this is so
because in determining whether a prior offense constitutes a crime of violence,
the first step is to look at “the statutory basis of conviction. If the statute is
ambiguous, or broad enough to encompass both violent and nonviolent crimes, a
court can look beyond the statutory count of conviction in order to resolve a
patent ambiguity caused by a broad state statute.” United States v. Farnsworth,
92 F.3d 1001, 1008 (10th Cir. 1996) (quotation omitted).
Mr. Solorio argues that the California vehicular manslaughter statute is
ambiguous–requiring the district court to perform an extra-statutory
examination–because the statute prohibits the unlawful killing of a human being
when either § 23152 or 23153 is violated. Section 23153 provides that it is
unlawful for a driver negligently to cause bodily injury to another while driving
- 12 -
under the influence of drugs or alcohol. Cal. Veh. Code § 23153. According to
Mr. Solorio, because it is possible to be convicted of vehicular manslaughter for
ordinary negligence, the statute is too broad to be categorically deemed a crime of
violence. Aplt. Br. at 17-18 (citing United States v. Gacnik, 50 F.3d 848, 856
(10th Cir. 1995); People v. Oyaas, 219 Cal. Rptr. 243, 246 (Cal. Ct. App. 1985)).
In Gacnik, we found Colorado’s criminally negligent homicide statute to be
ambiguous. The statute in Gacnik criminalized causing the death of another
through criminal negligence, defined as gross negligence. We held that “[t]o
label any and all conduct resulting in a charge of criminally negligent homicide as
a ‘crime of violence’ . . . may sweep too broadly.” 50 F.3d 856.
We find Gacnik inapposite. Unlike the statute in Gacnik, Cal. Penal Code
§ 192 is not ambiguous because it “does not encompass all grossly negligent
conduct that causes the death of another; rather, it criminalizes causing death by
driving while under the influence of drugs or alcohol and with gross negligence.”
Farnsworth, 92 F.3d at 1009. In Farnsworth, a case involving the same California
vehicular manslaughter statute at issue here, we held that “the risk of injury from
drunk driving is neither conjectural nor speculative. . . . Drunk driving is a
reckless act that often results in injury, and the risks of driving while intoxicated
are well known. This is sufficient to satisfy the ‘serious risk’ standard of the
‘otherwise’ clause [of U.S.S.C. § 4B1.2(1)(ii)].” Id. (quoting United States v.
- 13 -
Rutherford, 54 F.3d 370, 376-77 (7th Cir. 1995) (holding that vehicular assault by
a drunk driver is a crime of violence)).
We also note that Application Note 1 of the commentary to U.S.S.G.
Section 4B1.2 states that “crime of violence” includes “murder, manslaughter,
kidnaping, aggravated assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling.” (emphasis added).
Because of our disposition of this case, however, we need not address the
government’s argument that since manslaughter is listed in the commentary, it is
necessarily a crime of violence for sentencing purposes. Aplee. Br. at 13.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
- 14 -