FILED
United States Court of Appeals
Tenth Circuit
April 14, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 07-5076
v. (N.D. Oklahoma)
OBED GONZALEZ, (D.C. No. CR-06-162-C)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.
Defendant and appellant Obed Gonzalez conditionally pled guilty to
possession with intent to distribute 100 kilograms or more of marijuana, in
violation of 21 U.S.C. § 841(a) and (b)(1)(B). He reserved the right to appeal the
denial of his motion to suppress the marijuana and the district court’s decision to
hold Gonzalez accountable for an amount of marijuana seized one year prior to
the instant offense. We affirm the denial of Gonzalez’s motion to suppress and
we affirm the sentence imposed.
*
This order and judgment is not binding precedent except under the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.
BACKGROUND
Oklahoma Highway Trooper Cody Hyde was monitoring traffic on
Interstate 44 near Stroud, Oklahoma, on the evening of August 23, 2006. At
approximately 11:40 p.m., Hyde stopped the Suburban van which Gonzalez was
driving after observing a traffic violation (failure to signal prior to changing
lanes). Hyde observed that Gonzalez was the sole occupant of the vehicle.
Gonzalez handed his driver’s license and a copy of the rental agreement for the
Suburban to Hyde.
Hyde testified at the suppression hearing that Gonzalez was extremely
nervous, looked exhausted and kept yawning. Gonzalez’s hands were shaking and
his voice cracked when he answered questions. His nervousness did not subside
even after Hyde told Gonzalez that he (Gonzalez) would only receive a warning.
While he was questioning Gonzalez, Hyde observed a road map on the front seat
of the car, an overnight bag, several food wrappers, a cell phone and energy drink
containers. The rental contract showed that the Suburban had been rented that
day in New Mexico and was due back in New Mexico three days later—i.e.,
August 26. It also showed that the car had been rented by a third party, with
Gonzalez listed as an authorized driver. When asked why he had not rented the
vehicle, Gonzalez explained that he did not have a credit card.
Hyde asked Gonzalez to step out of the car and accompany him back to his
patrol car. As Hyde passed the rear of the Suburban, he shined his flashlight into
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the rear of the Suburban. He observed the luggage cover pulled over the cargo
area and he saw the ends of two duffel bags and a trash bag with square-shaped
packages. Trooper Hyde testified that he immediately identified the square
packages as kilos of narcotics. The length of time Hyde shined his light into the
Suburban was approximately one second.
While sitting in Hyde’s patrol car, Hyde and Gonzalez discussed
Gonzalez’s travel plans. Gonzalez said he was going to Tulsa to visit a friend and
that he would stay in Tulsa for two or three days. Gonzalez named his friend as
Aaron Lyon, and he said he would be staying at Lyon’s house if there was room.
Gonzalez also told Trooper Hyde that he owned his own construction company.
Hyde filled out the warning citation and asked Gonzalez to sign it. When
Gonzalez handed the pen back to Hyde, Hyde observed Gonzalez’s hand
trembling. Trooper Hyde told Gonzalez he was free to go, but then asked if he
could ask Gonzalez a few more questions. In response to the questions, Gonzalez
said he was not transporting weapons or drugs in the car and he refused to give
consent to search it.
Hyde then ran his drug-sniffing dog around the Suburban. The dog alerted
to the car, indicating the presence of narcotics. A search of the car revealed 193
square-shaped bundles, weighing approximately 430 pounds, in the two duffel
bags and trash bag in the back of the Suburban. Gonzalez was arrested. While he
was being taken to jail, Gonzalez told Trooper Hyde that he expected to receive
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$30,000 for this trip and that he had made $60,000 in 2005 by transporting
narcotics.
Gonzalez filed a motion to suppress the marijuana, on the ground that Hyde
did not have a reasonable articulable suspicion that illegal activity was occurring,
so as to justify prolonging the detention once the warning citation had been issued
and Gonzalez was told he could go on his way. In denying the motion to
suppress, the district court stated the following:
The Court finds credible Trooper Hyde’s testimony that the
defendant appeared nervous and was visibly shaken during the traffic
stop. The Court finds that the audio tape of the traffic stop
substantiates Trooper Hyde’s testimony. Prior to Trooper Hyde
discovering the narcotics in the Suburban, the trooper clearly advised
the defendant that he was issuing only a warning ticket. However,
the defendant’s voice continued to sound strained when he spoke to
the officer. The defendant offered very little conversation except for
brief answers to direct questions asked by Trooper Hyde. Moreover,
as the defendant was observing Trooper Hyde search his vehicle he
was talking to an unidentified person on a cell phone or radio. In
that conversation there was minimal change in the defendant’s voice
after he observed Trooper Hyde discover the marijuana in the
Suburban. The unknown listener is heard commenting on several
occasions that the defendant needed to “calm down.” The audio tape
substantiates Trooper Hyde’s testimony that the defendant appeared
nervous and anxious both before and after he discovered the
narcotics in his vehicle.
The Court finds credible Trooper Hyde’s testimony that he
observed the ends of duffle bags and black trash bags containing
square bundles in the rear cargo area of the Suburban. Trooper
Hyde’s extensive specialized training in drug concealment and his
extensive experience in thousands of traffic stops involving large
scale drug trafficking lends credibility to Trooper Hyde’s statement
that he could detect this type of drug concealment by looking in the
cargo area for as brief a time as one second.
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Order at 5-6, R. Vol. I, doc 24. The court concluded that “Trooper Hyde’s
detention of defendant Obed Gonzales was supported by reasonable suspicion of
illegal activity and the search of his vehicle was supported by probable cause.”
Id. at 9.
Gonzalez pled guilty and, in preparation for sentencing, the United States
Probation Office prepared a presentence report (“PSR”). In the PSR, a total of
453 kilograms of marijuana were attributed to Gonzalez. This consisted of the
approximately 403 pounds seized in the current transaction, as well as 597 pounds
seized from a boat Gonzalez was towing the year before. 1 The PSR concluded
1
The PSR described the incident from the prior year as follows:
Consistent with his admission, on a previous occasion one year
earlier, Gonzalez had been stopped in a similar incident. On
August 22, 2005, Oklahoma Bureau of Narcotics Agent Ronnie
Jackson observed a 1999 Ford F-350 pick-up truck bearing New
Mexico license plates pulling a boat traveling eastbound on Interstate
40 following another vehicle too closely. Once a traffic stop was
initiated, the driver of the vehicle, Gonzalez, handed agent Jackson
his driver’s license. The passenger, Roger Gomez, handed the
registration papers to the agent. Both did so without being asked.
The vehicle was registered to Gomez. Both men gave the agent
conflicting stories regarding their travel plans and appeared nervous
doing so. After Gonzalez was issued a warning citation, the agent
then asked both men if there were firearms or narcotics in the pick-
up truck. Both men denied and consented to a search of the pick-up
truck. With the assistance of another agent, a search of the pick-up
truck revealed no contraband. Upon removing the tarp of the boat,
agents could smell the strong odor of raw marijuana. Both Gonzalez
and Gomez were handcuffed. A locked compartment was located in
the front of the boat. Gomez advised he did not know where the key
to the compartment was. Agents forced the compartment opened and
(continued...)
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that “based on these two similar incidents that were part of the same course of
conduct, the defendant possessed a total of approximately 453 kilograms of
marijuana.” PSR ¶ 11, R. Vol. II. This yielded a base offense level of 28, which
was then reduced by two points for acceptance of responsibility. With a total
offense level of 26 and a criminal history category of II, the advisory United
States Sentencing Commission, Guidelines Manual (“USSG”) sentencing range
was seventy to eighty-seven months. The district court sentenced Gonzalez to
seventy-eight months’ imprisonment.
Gonzalez appeals, arguing (1) the district court erred when it denied
Gonzalez’s motion to suppress on the ground that reasonable suspicion existed to
prolong the detention of Gonzalez following a lawful traffic stop; and (2) the
district court erred by including as relevant conduct under the advisory Guidelines
an amount of marijuana seized from Gonzalez in a traffic stop one year earlier.
1
(...continued)
found 150 bundles of marijuana wrapped in tan colored packing tape,
laundry detergent and clear plastic wrap. . . . A total of 597 pounds
of marijuana were confiscated. Charges were never formally filed
against Gonzalez.
PSR ¶ 10, R. Vol. II.
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DISCUSSION
I. Denial of motion to suppress:
“In reviewing the denial of a motion to suppress, we accept the factual
findings of the district court unless they are clearly erroneous. The ultimate
determination of reasonableness under the Fourth Amendment is a question of
law, which we review de novo.” United States v. Contreras, 506 F.3d 1031, 1035
(10th Cir. 2007) (citation omitted). “The credibility of witnesses, the weight to
be given evidence, and the reasonable inferences drawn from the evidence fall
within the province of the district court.” United States v. Williams, 403 F.3d
1203, 1206 (10th Cir. 2005).
There is no dispute that the initial traffic stop was valid. See United States
v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (“[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.”) (en banc). Gonzalez does not
claim that the initial stop for failure to properly signal while changing lanes was
invalid.
However, “[o]nce an officer has returned the motorist’s license and other
papers and issued any citation he intends to give, he must usually allow [the
motorist] to proceed on [his] way without additional questioning.” Contreras, 506
F.3d at 1035. Any further detention of the motorist “must be justified by an
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objectively reasonable and articulable suspicion of illegal activity based on the
totality of the circumstances.” Id. at 1036 (further quotation omitted).
We have stated that reasonable suspicion is a “particularized and objective
basis for suspecting the particular person stopped of criminal activity.” United
States v. Guerrero, 472 F.3d 784, 787 (10th Cir. 2007). In determining the
existence of reasonable suspicion, “we defer to trained law enforcement
personnel, ‘allow[ing] officers to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that ‘might well elude an untrained person.’” Id. (quoting
United States v. Arvizu, 534 U.S. 266, 273 (2002) (further quotation omitted)).
Thus, the “evaluation is made from the perspective of the reasonable officer, not
the reasonable person.” Id. (further quotation omitted). We must not, however,
“examine each factor adding up to reasonable suspicion individually,” but, rather,
we must “evaluate how convincingly they fit together into a cohesive, convincing
picture of illegal conduct.” Id.. The Supreme Court in Arvizu “rejected what it
called a ‘divide-and-conquer analysis,’ noting that reasonable suspicion may exist
even if ‘each observation’ is ‘susceptible to an innocent explanation.’” Id.
(quoting Arvizu, 534 U.S. at 274).
Cody testified at the suppression hearing that, prior to Gonzalez’s refusal to
allow him to search the Suburban, he thought he had reasonable suspicion to
search, based on the totality of the following circumstances:
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From the simple fact he was coming from a source city going
to a source city traveling on a main drug courier highway. He had a
third-party rental vehicle that was only rented for three days,
obviously a quick turn around trip. Had the food wrappers and
energy drinks. He looked exhausted. He had obviously been
traveling nonstop since he left. I did not . . . see any luggage in the
vehicle. And also the fact that he was extremely, extremely nervous.
Id. at 21. When asked if the bundles in the back of the car contributed to his
suspicion, Cody said they did “[a]long with all of the other things.” Id. Once the
dog alerted to the Suburban, Cody had probable cause to search the car, which led
to the discovery of the marijuana. See United States v. Williams, 403 F.3d 1203,
1207 (10th Cir. 2005) (“A canine alert gives rise to probable cause to search a
vehicle.”).
Some of the factors Trooper Hyde cited are of little value in establishing
reasonable suspicion. We have stated that the “fact that the defendants were
traveling from a drug source city . . . does little to add to the overall calculus of
suspicion.” Guerrero, 472 F.3d at 787-88. This is so because “[i]f travel between
two of this country’s largest population centers is a ground on which reasonable
suspicion may be predicated, it is difficult to imagine an activity incapable of
justifying police suspicion and an accompanying investigative detention. Our
holding that suspicious travel plans can form an element of reasonable suspicion
should not be taken as an invitation to find travel suspicious per se.” United
States v. Santos, 403 F.3d 1120, 1132 (10th Cir. 2005). Similarly, we attribute
little value to Hyde’s observation of food wrappers or a cell phone in the car:
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“wrappers from fast food establishments strewn about a car may indicate
slovenliness or the need to travel while eating, but do not themselves indicate a
driver smuggling contraband.” United States v. Bradford, 423 F.3d 1149, 1156
(10th Cir.2005). Further, cellular phones must be “outrightly dismissed as so
innocent or susceptible to varying interpretations as to be innocuous.” Id. at
1157.
On the other hand, “[w]e have noted numerous times that implausible travel
plans can form a basis for reasonable suspicion.” Contreras, 506 F.3d at 1036.
“We have also credited the idea that drug couriers often use third-party rental
cars.” Id. (citing United States v. Williams, 271 F.3d 1262, 1270 (10th Cir.
2001)). Further, “[a]lthough we have found nervousness to be of only limited
significance in determining whether reasonable suspicion exists, it does add to the
overall calculus of suspicious behavior, especially when, as here, it is extreme.”
Contreras, 506 F.3d at 1036 (further quotation and citation omitted); see also
United States v. Williams, 403 F.3d 1203, 1206-07 (10th Cir. 2005) (finding the
officer had reasonable suspicion in part because defendant “was extremely
nervous during his encounter with Trooper Hyde; his hands were shaking, his
voice cracking, he could not sit still, and his heart was beating so fast that
Trooper Hyde was able to see his chest jerk”).
In this case, Gonzalez’s travel plans, while not necessarily completely
implausible, were unusual and suggestive of a very quick turn-around trip.
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Further, a third party had rented the car and, although Gonzalez was listed as an
approved driver, the actual renter was nowhere in sight. Trooper Hyde testified to
Gonzalez’s extreme nervousness, even after being told he would only receive a
warning. Cf. United States v. Patterson, 472 F.3d 767, 779 (10th Cir. 2006)
(noting that defendant’s “nervousness throughout the stop, despite [the trooper’s]
assurances that he would only get a warning citation, further supports the jury’s
conclusion that he knowingly possessed the cocaine”), petition for cert. filed,
(U.S. Apr. 24, 2007) (No. 06-10972).
Finally, Trooper Hyde testified that he actually saw square bundles
underneath the cover in the back of the Suburban, which, to his trained and
experienced eye, immediately suggested narcotics. Gonzalez argues it would
have been impossible for Hyde to see those bundles, if the cover was pulled all
the way toward the rear hatch of the Suburban, especially given that Hyde
admittedly looked in with a flashlight for perhaps one second. 2 However, the
district court specifically found Trooper Hyde’s testimony on this point credible.
It is not our role on appeal to re-examine credibility determinations.
In sum, although several of the factors upon which Trooper Hyde rested his
finding that reasonable suspicion existed are entitled to little, if any, weight, and
2
While the video of Hyde looking in the Suburban and then later opening
the back of the vehicle is not a part of the record on appeal, the testimony below,
as well as representations made at oral argument of this appeal, suggest that it is
impossible to tell whether Hyde could see the bundles or not.
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others may be, individually, equally as suggestive of innocent travel, the totality
of the circumstances supports the conclusion that there was reasonable articulable
suspicion to suspect criminal activity. The district court therefore correctly
denied Gonzalez’s motion to suppress.
II. Other marijuana as relevant conduct:
As indicated, Gonzalez had been arrested in 2005, a year before the arrest
and conviction in this case. In that prior incident, he was stopped while driving a
vehicle eastbound along Interstate 40. The vehicle belonged to the passenger,
Roger Gomez. The car was towing a boat, in which was found 150 bundles of
marijuana, totaling 597 pounds. Gonzalez was never charged, however, as the
search of the boat was later determined to be illegal.
The PSR characterized the 2005 incident as relevant conduct under USSG
§1B1.3 and used it to increase Gonzalez’s base offense level under USSG §2D1.1.
Gonzalez objected to the PSR’s inclusion of the 2005 incident. The district court
agreed with the PSR and the government and accordingly used the drug quantity
from the 2005 incident to increase Gonzalez’s base offense level. Gonzalez
argues that was clearly erroneous.
While we now review sentences for procedural and substantive
reasonableness, “whatever sentence the district court ultimately chooses, Gall [v.
United States, 128 S. Ct. 586, 594 (2007)] emphasized that, as a matter of
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procedural regularity, the ‘starting point and the initial benchmark’ for any
sentencing decision must be a correctly calculated Guidelines sentencing range.”
United States v. Todd, 515 F.3d 1128 (10th Cir. 2008) (quoting Gall, 128 S. Ct. at
[ ]). Thus, “on appellate review, our first task remains to ‘ensure that the district
court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range . . . [or] selecting a sentenced based
on clearly erroneous facts.’” Id. at 1135-36 (quoting Gall, 128 S. Ct. at 597). “In
determining whether the district court correctly calculated the recommended
Guidelines range, we review de novo the district court’s legal conclusions
pertaining to the Guidelines and review its factual findings, including its
determination of the quantity of drugs for which the defendant is held accountable
under the Guidelines for clear error.” Id. at 1135. Further, drug quantities used
by the district court to arrive at the applicable Guidelines range “may be said to
be clearly erroneous only when ‘the district court’s finding was without factual
support in the record or we are left with the definite and firm conviction that a
mistake has been made.’” Id. (quoting United States v. Dalton, 409 F.3d 1247,
1251 (10th Cir. 2005)).
For the drugs involved in the 2005 incident to qualify as relevant conduct
for sentencing on the current crime, the two offenses (2005 and 2006 drug arrests)
must be part of “the same course of conduct.” USSG §1B1.3 (a)(2). Application
note 9 to USSG §1B1.3 states as follows regarding “same course of conduct”:
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Offenses that do not qualify as part of a common scheme or plan may
nonetheless qualify as part of the same course of conduct if they are
sufficiently connected or related to each other as to warrant the
conclusion that they are part of a single episode, spree, or ongoing
series of offenses. Factors that are appropriate to the determination
of whether offenses are sufficiently connected or related to each
other to be considered as part of the same course of conduct include
the degree of similarity of the offenses, the regularity (repetitions) of
the offenses, and the time interval between the offenses. When one
of the above factors is absent, a stronger presence of at least one of
the other factors is required.
USSG §1B1.3 (n.9(B)). We conclude that the district court did not clearly err in
including the drug quantity from the 2005 incident.
The two events were similar in that they both involved Gonzalez
transporting large quantities of marijuana in bundles in the same general area in
Oklahoma. Furthermore, Gonzalez admitted to Trooper Hyde that he had made
$60,000 the previous year transporting marijuana and that he expected to make
$30,000 from the offense of conviction. The PSR recounts that “[a]fter he was
booked into the Creek County, Oklahoma, jail agents commented to Gonzalez that
the load of marijuana he had been transporting was not very large. Gonzalez
replied that ‘I usually bring 600 pounds twice a month and about 12,000 pounds
annually.” PSR ¶ 9, R. Vol. II. Thus, by his own admission, Gonzalez routinely
transported marijuana. “[W]e have specifically held that a defendant’s
admissions can in these circumstances serve as a proper basis of a court’s drug
quantity calculation under the Guidelines.” Todd, 515 F.3d at 1135. The district
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court’s inclusion of the drug quantity from 2005 in calculating Gonzalez’s
Guidelines sentence was not clearly erroneous.
To the extent Gonzalez makes any challenge to the length of his sentence as
substantively unreasonable, we conclude he has failed to rebut the presumption of
reasonableness which we accord a properly calculated within-Guideline advisory
sentence.
CONCLUSION
For the foregoing reasons, we AFFIRM the denial of the motion to suppress
and we AFFIRM the sentence.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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