F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 6, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-8032
(D.C. No. 05-CR-164-J)
DONACIANO MONJE-CONTRERAS, (Wyoming)
also known as Ramiro Rivera-Mendoza,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ,
Circuit Judge.
In a five-count indictment filed on July 13, 2005, Donaciano Monje-Contreras (the
“Defendant”) was charged as follows: (1) possession, with an intent to distribute, of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) possession of
a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A); (3) being an illegal alien in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(5) and 924(a)(2); (4) being an illegal alien in possession of ammunition in
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2); and (5) illegal re-entry of a previously
deported alien into the United States, in violation of 8 U.S.C. § 1326(a). On November
14, 2005, the Defendant filed a motion to suppress any evidence obtained as a result of
his “illegal detention and seizure.” After hearing, the district court, on January 13, 2006,
filed its “Memorandum Opinion and Order Denying Motion to Suppress.”
On February 9, 2006, pursuant to a written plea agreement, the Defendant pled
guilty to counts 1, 2, and 5 of the indictment, wherein the Defendant reserved his right to
appeal the district court’s denial of his motion to suppress. Fed. R. Crim. P. 11(a)(2). On
February 27, 2006, the Defendant filed a “Motion to Reconsider Court’s Denial of
Motion to Suppress and Withdraw Guilty Plea,” citing a case decided by the Tenth
Circuit very shortly after the district court’s denial of his Motion to Suppress. On April
11, 2006, the district court denied Defendant’s Motion to Reconsider “in its entirety.” On
April 20, 2006, the district court sentenced the Defendant to imprisonment for 147
months. On April 28, 2006, the Defendant filed a timely notice of appeal.
The facts out of which the present controversy arises are not really in dispute.
Trooper Gates, a Wyoming State Trooper, was the only witness at the suppression
hearing. On May 27, 2005, at about 10:41 p.m.,1 the Trooper heard a Rocks Springs
police dispatcher issue a REDDI (Report Every Drunk Driver Immediately) report
concerning a “suspected” drunk driver occurring within the Trooper’s general work area.
1
The “times” mentioned in this order and judgment come from the video/audio
tape of the stop and the events thereafter occurring at the scene of the stop.
2
The report related to the driver of a white (sometimes referred to as a silver) Jeep
Cherokee with a California license plate, and gave the exact numbers on the plate. The
Trooper shortly thereafter saw a white Jeep Cherokee with a California license plate
bearing a number slightly different, though similar, to the one previously given him by
the dispatcher. The Trooper proceeded to follow the vehicle and observed no erratic
driving on the part of the driver of the Jeep Cherokee. However, the Trooper called the
dispatcher and asked her to check out the license plate number that he had seen on the
Jeep, and after a minute or so, was told that the license number he had given the
dispatcher had expired. The Trooper then stopped the Jeep at about 10:48 p.m.
As stated, the foregoing events occurred after 10 p.m. After the driver of the Jeep
stopped in a rather well-lit parking lot of an adjacent motel, the Trooper stopped his
vehicle immediately behind the Cherokee, turned on his “search lights,” and got out of his
vehicle. As he was going forward towards the driver’s side of the Jeep, he saw, for the
first time, what appeared to be a temporary registration paper in the upper left portion of
the back window. It later developed that the window was both “tinted and dirty.”
The Trooper then approached the driver of the Jeep, who was the Defendant, and
asked for his driver’s license, registration papers, and proof of insurance, and in so doing
explained to the Defendant he had been stopped for an expired license plate and that he,
the Trooper, had not been able to see before the stop what appeared to be a registration
paper affixed to the back window of the Cherokee. The Defendant gave the Trooper his
driver’s license, and then the two of them walked back to the rear window, where the
3
Defendant, with some difficulty, “wiped off” the dust or grime on the window so as to
make the temporary registration more visible. In this regard, the Trooper testified at the
suppression hearing that at that point in time he knew he could issue a citation for
“temporary registration obscured” under Wyo. Stat. § 31-4-101.2
The Trooper and the Defendant then returned to the Cherokee and the Defendant
produced his registration papers. After that, the Trooper returned to his patrol car and
asked the dispatcher to run a “check” on the Defendant’s driver’s license. The dispatcher,
after a few moments, advised the Trooper that the driver’s license had been suspended
and that there was an active extraditable warrant on the Defendant from Garden City,
Kansas. Shortly thereafter, at about 11:22 p.m., the Trooper arrested the Defendant and
later testified that for his own safety he patted down the Defendant and found ammunition
and methamphetamine on his person. An ensuing search of the Defendant’s car revealed
a plastic bag containing 169.9 grams of methamphetamine and a .357 magnum firearm
lodged between the front passenger seat and the center console of the Jeep. The
ammunition previously taken from the Defendant was usable in the firearm. Also found
on the Defendant was $1,629.00 in cash.
2
Wyo. Stat. § 31-4-101 reads as follows:
(a) No person shall knowingly operate, nor shall an owner
knowingly permit to be operated, upon any highway any
vehicle:
***
(iii) With license plates, validation stickers or
license permits altered, mutilated or obscured so
as to prevent the license plate number from
being easily read.
4
On appeal, Defendant argues that the district court erred in denying his motion to
suppress and, in sentencing, finding that the drug quantity in question was between 500
grams and 1.5 kilograms of methamphetamine.
I. Motion to Suppress
At the hearing on the Defendant’s motion to suppress, the Defendant conceded that
the initial stop of the vehicle he was driving was lawful and did not violate the Fourth
Amendment’s prohibition of “unreasonable searches and seizures.” However, the
Defendant did argue that his “continuing detention” after the Trooper saw the temporary
registration affixed to the inside of the rear window of the Defendant’s vehicle did violate
the Fourth Amendment, and that the methamphetamine and ammunition later found in the
search of his person, as well as the additional methamphetamine and the firearm found
inside his car, together with all statements made by him to the police after his arrest,
should be suppressed, and not used at trial. In thus arguing, the Defendant cited, and
relied heavily on, United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), and our
unpublished opinion in United States v. Pina-Aboite, 109 Fed. Appx. 227 (10th Cir.
2004). In McSwain, 29 F.3d at 561, we spoke as follows:
Trooper Avery stopped Mr. McSwain for the sole purpose of
ensuring the validity of the vehicle’s temporary registration
sticker. Once Trooper Avery approached the vehicle on foot
and observed that the temporary sticker was valid and had not
expired, the purpose of the stop was satisfied. Trooper
Avery’s further detention of the vehicle to question Mr.
McSwain about his vehicle and travel itinerary and to request
his license and registration exceeded the scope of the stop’s
underlying justification.
5
The district court, in its order denying the Defendant’s motion to suppress, found
that there were facts in the present case which were different than the facts in McSwain
and Pina-Aboite and that these cases did not control the instant case. We agree.
The starting point in our discussion is that the Trooper saw nothing in the rear
window of the Cherokee until after he had determined that its license plates were expired
and stopped the Cherokee. Only after he had stopped the Cherokee in a well-lit parking
lot of a motel and had turned on his own search lights did he first see anything affixed to
the rear window of the Cherokee. At that point in time he did not examine the paper he
had just noticed, but proceeded directly to the driver’s side of the Cherokee and engaged
in conversation with the Defendant. The Defendant and the Trooper then went back to
examine the “piece of paper” more clearly. It was only after the Defendant, sua sponte,
so to speak, wiped the foreign particles off the window that the registration became
apparent to the Trooper. In this regard, it would appear that it was later determined that
the temporary registration had not expired, and was still valid. In connection therewith,
the Trooper testified that as the Defendant was wiping the dust and grime off the
windshield, it occurred to him that the Defendant had perhaps violated the Wyoming
statute. As above mentioned, in this regard, the district court concluded that the Trooper
did have a reasonable articulable suspicion that the Defendant had violated the Wyoming
statute. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Botero-Ospina, 71 F.3d 783
(10th Cir. 1995). We agree, and like the district court, we reject the suggestion that the
6
Trooper knew the registration was valid when he first exited his vehicle and went forward
to engage in conversation with the Defendant.
Shortly after the district court denied Defendant’s motion to suppress, the
Defendant filed in the district court a motion to reconsider its ruling, arguing that U.S. v.
Edgerton, 438 F.3d 1043 (10th Cir.), decided on February 22, 2006, dictated a grant of
his motion to suppress. That case did involve a Kansas statute similar to the Wyoming
statute involved in the present case. After hearing, the district court denied that motion,
noting that in Edgerton, there was no evidence that the temporary registration was in any
way “obscured,” except by the fortuitous fact that is was nighttime. In the instant case, of
course, there is evidence that the temporary registration was “obscured,” at least to some
degree, by foreign matter on the rear windshield. In our view, Edgerton is distinguishable
from the present case and does not compel a granting of Defendant’s motion to suppress.
U.S. v. Ledesma, 447 F.3d 1307 (10th Cir.) decided on May 19, 2006, subsequent
to the filing of the notice of appeal in the instant case, sheds light on the present
controversy. In that case we ruled that displaying a temporary tag behind a heavily tinted
rear window violated a Kansas statute requiring that license plates appear “in a place and
position to be clearly visible....” We recognize that the rear window in the present case
was only “lightly tinted,” and not “heavily tinted,” as it was in Ledesma. However, in
the instant case there was foreign matter on the rear window of the defendant’s car, which
was not the case in Ledesma. In Ledesma, we reviewed the applicable Tenth Circuit law
on the general subject of “obscured” license tags that were not “clearly visible” and
7
concluded that the “stop” and the ensuing short detention in that case was “justified by
reasonable suspicion under the standards set forth in Terry v. Ohio, 392 US 1.” We again
agree.
II. Sentencing
The presentence report stated that the amount of methamphetamine involved in the
present offense was between 500 grams and 1.5 kilograms, resulting in an offense level of
32. The defendant objected to that recommendation, arguing that only 184 grams of
methamphetamine was involved, i.e., the methamphetamine found on his person and in
his vehicle at the time of his arrest. In this connection the defendant, during his
interrogation by the police, admitted that he had sold, on another occasion, a pound of
methamphetamine to one “Jeff Roberts.” At sentencing, an evidentiary hearing was held,
and a deputy in the local sheriff’s office testified that the defendant, after being given his
Miranda warning, stated, inter alia, that he had on one occasion sold someone named Jeff
a pound of methamphetamine for $11,000 in Rock Springs, Wyoming and that he had on
several other occasions sold methamphetamine to Jeff.3
It was on this general state of the record that the district court followed the
recommendation of the PSR and set defendant’s base offense level at 32 because his
“relevant conduct” involved sales to Jeff of between 500 grams and 1.5 kilograms of
methamphetamine.
3
It should be mentioned that in his post-arrest interview by officers at the police
station, that defendant in response to a question as to “what he does for work?” reportedly
replied “drugs.”
8
On appeal, defendant argues that the “hearsay” contained in the PSR denied him
his “confrontational rights” guaranteed him by the Sixth Amendment. We recently
rejected that argument in U.S. v. Bustamante, 454 F.3d 1200 (10th Cir. 2006) where we
held that the consideration by a district court of hearsay evidence at sentencing did not
violate a defendant’s Sixth Amendment rights under the Confrontation Clause.
In this same connection, we would also note that at sentencing, a deputy of the
Sheriff’s office testified as to defendant’s admission of selling a pound of
methamphetamine to Jeff Roberts for $11,000, and was not cross-examined.
Judgment affirmed.
ENTERED FOR THE COURT
Robert H. McWilliams
Senior Circuit Judge
9