UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4296
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERTO CARLOS ALVAREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:07-cr-00289-HEH-1)
Submitted: February 1, 2011 Decided: February 25, 2011
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John G. LaFratta, MAIN STREET LAW OFFICE, Richmond, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Angela
Mastandrea-Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Roberto Carlos Alvarez was convicted, following a jury
trial, of possession of a firearm by a convicted felon and
possession with the intent to distribute cocaine base. The
district court imposed a 360-month sentence on the drug charge
and a 120-month concurrent sentence on the firearm charge.
Alvarez appeals the denial of his motion to suppress evidence
and the district court’s denial of his motion for a downward
departure or variance from the 360-month to life advisory
guideline range. Finding no reversible error, we affirm.
During the hearing on Alvarez’s motion to suppress
evidence, Officer Woodson testified that, while working a
traffic checkpoint, he observed a vehicle approach the
checkpoint and then turn into a private driveway just prior to
the checkpoint. The vehicle pulled halfway down the long
driveway and stopped with the vehicle partially concealed behind
a bush. Woodson observed the vehicle for about sixty to ninety
seconds and no one got out of the car. Based on his training
and experience, Woodson testified that he believed that the
driver was operating an unregistered vehicle or driving without
a valid license and was attempting to avoid the checkpoint. He
then drove his marked police vehicle to investigate.
Woodson parked his police vehicle at the entrance to
the driveway, blocking the other vehicle from exiting. As he
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did so, Woodson noted a “no trespassing” sign at the entrance to
the property. He also observed that there was no one in the
driver’s seat of the vehicle and a juvenile female was moving
from the passenger seat to the driver’s seat, while a man who
was sitting in the back seat started to exit the rear passenger
side door.
Woodson directed the man to sit back in the vehicle,
determined that neither occupant had a license or any
identification, that the vehicle’s occupants did not live at the
residence, and the man did not answer Woodson’s requests for his
name. Woodson patted the man down and discovered a significant
amount of cash, but no weapon. Woodson walked around the
vehicle and discovered a black “backpack-type” bag about twenty
feet from the vehicle. The bag was dry, although it had been
raining that morning, and inside the bag, Woodson found a
quantity of cocaine, digital scales, baggies, and a loaded
firearm. Woodson thereafter arrested the man and charged him
with possession of the firearm and possession with intent to
distribute cocaine base. The man was later identified as
Alvarez.
Also at the suppression hearing, the juvenile
testified that Alvarez became nervous when he saw the
checkpoint, he then turned into the driveway, and directed that
she change seats with him. He also threw the black bag out of
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the window. She testified that Alvarez had made a prior stop at
a hotel and picked up the black bag.
The district court denied Alvarez’s motion to suppress
the evidence, finding that Officer Woodson had reasonable
suspicion to investigate Alvarez’s purpose for pulling into the
driveway and that the black bag had been abandoned, and
therefore Alvarez lacked standing to challenge the search of the
bag.
This court reviews the district court’s factual
findings relevant to a motion to suppress for clear error, and
its legal determinations de novo. United States v. Cain, 524
F.3d 477, 481 (4th Cir. 2008). The facts are reviewed in the
light most favorable to the prevailing party below. United
States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007). A vehicle
stop constitutes a seizure within the meaning of the Fourth
Amendment and is permissible if the officer has probable cause
to believe a traffic violation has occurred, Whren v. United
States, 517 U.S. 806, 809-10 (1996), or has a reasonable
suspicion of unlawful conduct, Terry v. Ohio, 392 U.S. 1, 20-22
(1968), regardless of the officer’s subjective motivations.
Whren, 517 U.S. at 810, 813-19.
Alvarez contends that the officer lacked probable
cause to arrest him based only on the fact that he drove into a
driveway near the checkpoint. “[W]hen law enforcement officers
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observe conduct suggesting that a driver is attempting to evade
a police roadblock — such as unsafe or erratic driving or
behavior indicating the driver is trying to hide from officers —
police may take that behavior into account in determining
whether there is reasonable suspicion to stop the vehicle and
investigate the situation further.” United States v. Smith, 396
F.3d 579, 585 (4th Cir. 2005) (citation omitted). Here, based
on Alvarez’s conduct of abruptly turning into the driveway prior
to the checkpoint and pulling halfway down the driveway and
parking behind a bush, we hold that the district court correctly
determined that Officer Woodson had reasonable suspicion to stop
the vehicle and investigate further.
His observations of the “no trespassing” sign and the
vehicle’s occupants changing places in the vehicle provided
additional support for Officer Woodson’s investigation of
Alvarez and the juvenile. Under the totality of the
circumstances, the officer’s conduct of blocking the driveway
was not an unlawful seizure. See United States v. Arvizu, 534
U.S. 266, 273-75 (2002) (applying “totality of the
circumstances” test).
The district court also properly denied the motion to
suppress the drugs and the gun that were found in the black bag.
As the district court noted, Alvarez did not claim ownership of
the bag, which was found twenty feet from the vehicle. The
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juvenile who was a passenger in the vehicle testified that
Alvarez threw the bag out of the passenger window. This bag
constituted abandoned property, and therefore Alvarez had no
expectation of privacy in the contents. See Rawlings v.
Kentucky, 448 U.S. 98, 104 (1980); United States v. Leshuk, 65
F.3d 1105, 1110-11 (4th Cir. 1995). Accordingly, we affirm the
district court’s denial of Alvarez’s motion to suppress
evidence.
Alvarez also challenges the district court’s denial of
his motion for a downward departure or a variance from the
career offender guideline range of 360 months to life
imprisonment. While he does not dispute that he had two prior
convictions for drug trafficking offenses, he asserts that his
classification as an adult — rather than a juvenile — for the
first of his drug trafficking offenses could substantially
overstate the seriousness of his criminal history relative to
other individuals with similar criminal records.
The district court determined, however, that Alvarez’s
criminal history was not overstated. Rather, at the time of the
first drug trafficking offense, Alvarez was 17 years old, had
three prior felony convictions as a juvenile, and had been
committed to the department of juvenile services. The district
court noted that most state court judges would certify such a
case for adult prosecution, rather than retaining it as a
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juvenile case. The district court also denied the variance
request based on the facts that Alvarez had three drug
trafficking convictions, he was on supervised release at the
time of this offense, he was in possession of a loaded firearm
and a large sum of cash in addition to the drugs, and he refused
to give the officer his name. We conclude that the district
court’s denial of the downward departure was not an abuse of
discretion. Additionally, we have determined that Alvarez’s
sentence was properly calculated and is reasonable. See Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Llamas,
599 F.3d 381, 387 (4th Cir. 2010). The district court followed
the necessary procedural steps in sentencing Alvarez,
appropriately treated the sentencing guidelines as advisory,
properly calculated and considered the applicable guidelines
range, and weighed the relevant 18 U.S.C. § 3553(a) (2006)
factors. We conclude that the district court did not abuse its
discretion in imposing the chosen sentence. See Gall, 552 U.S.
at 41; United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007)
(applying appellate presumption of reasonableness to within
guidelines sentence).
Alvarez has filed a motion for leave to file a pro se
supplemental brief. While we grant that motion, we find no
merit to the claims therein. Accordingly, we affirm Alvarez’s
conviction and his 360-month sentence. We dispense with oral
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argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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