United States v. Jacquinot

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-50757
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL BRETT JACQUINOT,

Defendant-Appellant.

____________________________________________

Appeal from the United States District Court
for the Western District of Texas

_____________________________________________
July 17, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:

Michael Brett Jacquinot appeals his conditional guilty plea

conviction and sentence for possession with intent to distribute

marijuana. He argues that the district court erred by: (1)

denying his motion to suppress the evidence obtained from a

roving border patrol stop of the truck in which he was a

passenger and (2) applying U.S.S.G. § 2D1.1(b)(1) to increase his

base offense level for possession of a firearm. We affirm.

I. FACTS

Michael Brett Jacquinot was indicted for possession with the

intent to distribute between 100 and 1,000 kilograms of

marijuana, in violation of 21 U.S.C. § 841(a)(1). Jacquinot

1
moved to suppress the evidence obtained as the result of the stop

of a vehicle in which he was riding, asserting that the border

patrol agents did not have reasonable suspicion to stop the

vehicle.

An evidentiary hearing was held on Jacquinot’s motion.

Border Patrol Agent Andrew P. Graham, a three-year veteran of the

Border Patrol, testified that he and eleven-year veteran Border

Patrol Agent Jay Snodgrass were stationed in Alpine, Texas, and

were assigned to patrol a 140-mile area of the United

States/Mexican border, including the Big Bend National Park.

While Graham’s patrol experience was all in the Alpine, Texas,

area, Snodgrass had transferred to Alpine a few months earlier,

having previously served at the Marfa Sector Area Operations

Center and the Laredo, Texas, border area. During his tenure

with the Border Patrol, Graham had been involved with at least 30

narcotics cases and 15 to 20 alien smuggling cases.

Texas Highway 385 is notorious for smuggling, and in the

prior six months, Agent Graham had noticed an increase in alien

and smuggling apprehensions on that highway. Agent Graham

attributed this increase in activity on Highway 385 to the Border

Patrol’s enhanced enforcement on other nearby highways.

In the early morning hours of Sunday, January 16, 2000,

Agents Graham and Snodgrass were parked on Highway 385,

approximately 75 miles north of the United States/Mexican border.

At 5:45 a.m., the agents were notified by Marfa Sector

Communications that vehicle sensors located inside Big Bend

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National Park and well within 50 miles of the United

States/Mexican border had indicated two northbound vehicles

traveling from within the park. The area in which the sensors

are located is very remote and is intersected only by ranch

roads. The fact that two vehicles activated the sensors at

approximately the same time made Graham suspicious that one may

be a lead car and the other a load car carrying contraband.

Subsequent vehicle sensors were triggered, indicating to Agent

Graham that the two vehicles that had triggered the first sensor

were continuing toward their location.

At approximately 6:45 a.m., Agent Graham observed two

vehicles pass by his location. Agent Graham believed that these

were the vehicles that had activated the first sensor within the

park, and he and Agent Snodgrass began to follow them in separate

marked Border Patrol vehicles. The first vehicle that had passed

the agents’ location was a late model four-door sedan carrying an

older Anglo couple and bearing a park registration receipt taped

to the windshield and a Mississippi license plate. The vehicle

appeared typical of the tourist traffic coming out of the park.

Agent Graham got directly behind the vehicle to check its

registration, and the vehicle continued to drive normally. Agent

Graham concluded that the first vehicle was probably not involved

in any illegal activity.

The second vehicle was a large white Ford pickup truck with

a lot of equipment in its bed; it appeared to be a work truck and

did not have a park sticker on its windshield. Agent Graham was

3
able to see only that the driver was a small-framed person

wearing a baseball cap. Agent Graham was surprised to see a work

truck coming out of the park on a Sunday morning before six

o’clock. He normally saw construction vehicles leaving the park

in groups at the end of the work day or on Friday evenings at the

end of the work week. The truck bore a Kansas license plate,

which made Agent Graham suspicious because the park typically

hires contractors from the local area. Additionally, Agent

Graham was aware of a recent narcotics smuggling operation in the

Alpine area destined for locations in Kansas.

Agent Graham got to within two car lengths of the truck to

read the registration and then followed the truck from ten car

lengths. Agents Graham and Snodgrass continued to follow the

truck while they awaited registration information on it. The

truck slowed to fifteen miles per hour below the average speed

limit. Typically, Agent Graham does not see vehicles

dramatically change their speed unless the vehicle was not

traveling the speed limit before being followed by an agent.

The agents were unable to obtain the registration

information because of computer-system problems, but they

continued to follow the truck. As the truck approached Marathon,

Texas, it stopped at a stop sign, activated its left turn signal,

and then remained stopped for five seconds before turning left

onto Highway 90. Agent Graham found the truck’s pause at the

stop sign to be much longer than what he normally sees. Agent

Graham also found the truck’s left turn to be strange because

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most vehicles coming up Highway 385 would continue straight on

that road toward Fort Stockton and Interstate 10. By turning

left, the truck began traveling toward Alpine; however, the most

direct and logical route of travel from Big Bend to Alpine is

Highway 118. In Agent Graham’s experience, most visitors to such

a remote area with limited gas stations have a map and know which

roads to take.

The truck then drove through Marathon at 20 miles per hour.

There was a school zone sign limiting speeds to 20 miles per hour

when the sign was flashing, but the sign was not flashing, it was

a Sunday morning, and there were no pedestrians, children, or

other vehicles on the street. Agent Graham felt that the truck

was trying to avoid being pulled over. Agent Graham confirmed

Agent Snodgrass’ prior observation that the truck was carrying

tool boxes, a spare gas tank, and an air tank. After following

the truck for a total of approximately fifteen minutes, Graham

determined that it was more likely than not that the truck was

involved in illegal activity. His determination was based on:

the unusual hour that this apparently non-tourist work vehicle

left the park; the truck’s Kansas license plate, since he had

personal experience with a smuggling organization transporting

marijuana from the Big Bend area to Kansas; the absence of a park

registration sticker on the vehicle, indicating that it had not

been in the park for any length of time; the fact that the truck

appeared to have transited the park from the west side to the

east side, which was a tactic smugglers had recently been using

5
to circumvent Border Patrol traffic or checkpoint operations;

Highway 385's reputation for the smuggling of aliens and

narcotics; and the driver’s behavior when they were following the

truck. Agent Graham stopped the truck 70 or 80 miles from the

United States/Mexico border.

The district court denied Jacquinot’s motion, determining

that the agents’ stop of the truck was justified by reasonable

suspicion and did not violate the Fourth Amendment. Jacquinot

entered a conditional plea of guilty, reserving his right to

appeal the denial of his suppression motion. The presentence

report (“PSR”) applied a two-level adjustment to Jacquinot’s base

offense level for the possession of a dangerous weapon, as two

unloaded handguns had been found in the truck. See U.S.S.G. §

2D1.1(b)(1). Jacquinot filed an objection to the adjustment,

arguing that it was clearly improbable that the weapons had been

connected to the drug offense. The district court overruled

Jacquinot’s objection to the two-level adjustment.

The district court sentenced Jacquinot to 46 months’

imprisonment, three years’ supervised release, a $2,500 fine, and

a $100 special assessment. Jacquinot filed a timely notice of

appeal.

II. ANALYSIS

a. Roving Border Patrol Stop

Jacquinot asserts that the district court erred in denying

his motion to suppress the evidence obtained from the stop of the

truck. He contends that the circumstances known to the border

6
patrol agents did not give rise to a reasonable suspicion that

the truck was involved in illegal activities.

In reviewing the denial of a motion to suppress, the

district court’s factual findings are reviewed for clear error,

and its legal conclusions, including whether there was reasonable

suspicion for a stop, are reviewed de novo. United States v.

Inocencio, 40 F.3d 716, 721 (5th Cir. 1994). A factual finding

is not clearly erroneous as long as it is plausible in light of

the record as a whole. United States v. Shipley, 963 F.2d 56, 58

(5th Cir. 1992). Further, “[t]he evidence presented at a pre-

trial hearing on a motion to suppress is viewed in the light most

favorable to the prevailing party.” Inocencio, 40 F.3d at 721.

A border patrol agent conducting a roving patrol may make a

temporary investigative stop of a vehicle only if the agent is

aware of specific articulable facts, together with rational

inferences from those facts, that reasonably warrant suspicion

that the vehicle’s occupant is engaged in criminal activity. See

United States v. Brignoni-Ponce, 422 U.S. 873, 884 (1975); United

States v. Cortez, 449 U.S. 411, 417-18 (1981). Factors that may

be considered in an analysis of reasonable suspicion include:

(1) proximity to the border; (2) characteristics of the area;

(3) usual traffic patterns; (4) agent’s previous experience in

detecting illegal activity; (5) behavior of the driver;

(6) particular aspects or characteristics of the vehicle;

(7) information about recent illegal trafficking in aliens or

narcotics in the area; and (8) the number, appearance, and

7
behavior of the passengers. Brignoni-Ponce, 422 U.S. at 884-85;

see also Inocencio, 40 F.3d at 722. The reasonable suspicion

analysis is a fact-intensive test in which the court looks at all

circumstances together to weigh not the individual layers, but

the laminated total. United States v. Zapata-Ibarra, 212 F.3d

877, 881 (5th Cir.), cert. denied, 121 S. Ct. 412 (2000).

Factors that ordinarily constitute innocent behavior may provide

a composite picture sufficient to raise reasonable suspicion in

the minds of experienced officers. Id.

In the instant case, the district court found that the

totality of the circumstances provided the agents with reasonable

suspicion to warrant the stop of the truck in which Jacquinot was

driving. The court identified the following Brignoni-Ponce

factors as supporting the validity of the stop.

Proximity to the border

One of the vital elements in the reasonable suspicion test

is whether the agents had reason to believe that the vehicle in

question recently crossed the border. United States v. Melendez-

Gonzalez, 727 F.2d 407, 411 (5th Cir. 1984). Although this court

does not adhere to a bright line test with regard to this factor,

a car traveling more than 50 miles from the border is usually

viewed as being too far from the border to support an inference

that it originated its journey there. Zapata-Ibarra, 212 F.3d at

881. The proximity element is satisfied, though, if the

defendant’s car was first observed within 50 miles of the United

States/Mexico border, but was stopped more than 50 miles from the

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border. See United States v. Villalobos, 161 F.3d 285, 289 (5th

Cir. 1998). If there is no reason to believe that the vehicle

came from the border, the remaining factors must be examined

charily. United States v. Rodriguez-Rivas, 151 F.3d 377, 380

(5th Cir. 1998).

The district court determined that although the truck was

first sighted by the agents approximately 75 miles from the

border, the activation of vehicle sensors in an area much less

than 50 miles from the border, the absence of major roads

intersecting Highway 385 between the border and the point where

the truck was first sighted, and the arrival of the vehicle at a

time consistent with the sensor alerts “unquestionably

indicate[d]” that the truck was traveling through an area very

close to the border prior to the stop. The district court’s

finding in this regard was not clearly erroneous; the finding is

plausible in light of the record as a whole. Inocencio, 40 F.3d

at 721. The district court went on to conclude that the

proximity-to-the-border element supported the agents’ reasonable

suspicion determination.

Jacquinot asserts that the proximity-to-the-border factor

should weigh against a finding of reasonable suspicion, as the

agents had no reason to believe that his truck had recently

crossed the border. However, given the district court’s accepted

factual finding that the precipitate events clearly indicated

that the truck had traveled through an area very close to the

border prior to the stop, the agents did in fact have a reason to

9
believe that the truck had recently crossed the border.

Therefore, this factor does provide support for the stop. Cf.

Melendez-Gonzalez, 727 F.2d at 411 (rejecting proximity-to-the-

border factor where vehicle was stopped 60 miles from border and

there was no independent reason to believe that the vehicle had

not started its journey in either of the two towns between the

border and the area of the stop).

Characteristics of the area

Based on Agent Graham’s testimony that Highway 385 has a

reputation as a smuggling route, the district court concluded

that the characteristics of the area supported a finding of

reasonable suspicion. While Jacquinot does not dispute that

Highway 385 is a notorious smuggling route, he notes that it is

also a major highway used by thousands of visitors to Big Bend

National Park, citing Rodriguez-Rivas, 151 F.3d at 380. And he

points out that this court has cautioned that a vehicle’s mere

presence on a road frequently used for illegal activity is not

sufficient to justify a stop, citing United States v. Diaz, 977

F.2d 163, 165 (5th Cir. 1992).

Nevertheless, "[i]t is well established that a road's

reputation as a smuggling route adds to the reasonableness of the

agents' suspicion." Zapata-Ibarra, 212 F.3d at 881-82 (emphasis

added) (quotation and citation omitted). This factor weighs in

favor of reasonable suspicion.

Usual traffic patterns

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 Agent Graham testified that traffic is typically very light

coming out of Big Bend before six o’clock in the morning and that

he was surprised to see a work truck leaving the park so early on

a Sunday morning. The district court thus considered the truck’s

presence on the highway at that time to be a deviation from the

typical traffic patterns that added to reasonable suspicion.

Jacquinot argues that leaving Big Bend early in the morning

should not contribute to reasonable suspicion. He notes that

Agent Graham testified that it was not unusual for park visitors

to get an early start on their trip home. However, Agent Graham

specifically testified that he did not believe he had ever seen a

work vehicle leave the park on a Sunday morning and that such

vehicles typically leave in groups at the end of the work day or

work week. The traffic-pattern factor weighs in favor of

reasonable suspicion.

Agents’ previous experience in detecting illegal activity

Agent Graham testified that he had three years’ experience

serving as a Border Patrol agent in the Alpine area and that

Agent Snodgrass had eleven years’ experience as a Border Patrol

agent, with a few months of that experience in the Alpine area.

The district court concluded that the agents’ previous experience

in the region contributed to the reasonable suspicion

determination. This factor supports the stop.

Behavior of the driver

Agent Graham testified that as he followed the truck, it:

slowed dramatically to fifteen miles per hour below the speed

11
limit, although it had not previously been speeding; remained

stopped at a stop sign for five seconds; made an unusual turn and

traveled toward Alpine on an indirect route; and obeyed a school

zone sign that limited speeds while flashing, although the sign

was not then flashing. The district court concluded that the

driver’s behavior added to the agents’ reasonable suspicion.

Jacquinot argues that it was not suspicious for the truck to

slow down after Agent Graham followed it within two car lengths,

passed it, and then got behind it again. He further contends

that it would not be unusual for a prudent out-of-state traveler

to stop at the Highway 385 and Highway 90 intersection for five

seconds to determine the way to the nearest town, which was

Alpine, or to travel at Highway 90's posted speed limit of 20

miles per hour.

Although deceleration in the presence of a patrol car may be

completely innocent behavior, this court has noted that such

behavior may be suspicious if the driver was not speeding when

first observed. See Villalobos, 161 F.3d at 291. And while it

is questionable whether the truck’s five-second pause at the stop

sign and adherence to the school zone speed limit were especially

suspicious, the truck’s indirect travel route from Big Bend to

Alpine does trigger suspicion. See Zapata-Ibarra, 212 F.3d at

884 (approving the district court’s consideration of an indirect

route as a factor supporting reasonable suspicion). This court

affords due weight to the inferences law enforcement officers

draw from historical facts and the events leading up to a stop.

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Id. Considering the totality of the driver’s behavior, this

factor weighs in favor of reasonable suspicion.

Particular aspects of the vehicle

Agent Graham testified that the truck: was not a tourist-

type vehicle, but a work vehicle carrying tool boxes, a gas tank,

and an air tank; did not have a park sticker on its windshield,

indicating that it had not been in any tourist areas of the park

for any length of time; and bore a Kansas license plate, although

the park uses local contractors. The district court did not err

in determining that the appearance of the truck contributed to

the agents’ reasonable suspicion.

Although the district court did not specifically address it,

the factor regarding information about recent illegal trafficking

in aliens or narcotics in the area is also relevant in this case.

Agent Graham testified that he was personally aware of “a lot of”

recent narcotics smuggling taking place through the Alpine area

that was destined for locations in Kansas. Since the truck in

question bore a Kansas license plate, this information weighs in

favor of Agent Graham’s reasonable suspicion determination.

Finally, as there is no indication in the record that

Jacquinot, the truck’s only passenger, caused any suspicion, the

factor regarding the number, appearance, and behavior of the

passengers is the sole factor that does not support the agents’

reasonable suspicion determination. See Zapata-Ibarra, 212 F.3d

at 884 (stating that not every Brignoni-Ponce factor need weigh

in favor of reasonable suspicion and that an officer need not

13
eliminate all reasonable possibility of innocent travel before

conducting an investigatory stop).

Viewing the evidence in the light most favorable to the

Government and considering the totality of the circumstances, the

district court did not err in denying Jacquinot’s motion to

suppress, as the border patrol agents’ stop of the truck in which

he was riding was based on reasonable suspicion that the truck’s

occupants were engaged in illegal activity. See id. at 881;

Inocencio, 40 F.3d at 721.

b. Upward adjustment for weapon possession

Jacquinot also contends that the district court erred in

applying § 2D1.1(b)(1)’s two-level upward adjustment for

possession of a weapon in connection with a drug trafficking

offense. Jacquinot argues that although there were two unloaded

handguns in the truck, the Government failed to prove that it was

not clearly improbable that he possessed those handguns in

connection with his drug offense.

The district court’s decision to apply § 2D1.1(b)(1) is a

factual determination reviewable for clear error. United States

v. Westbrook, 119 F.3d 1176, 1192-93 (5th Cir. 1997). Section

2D1.1(b)(1) provides for a two-level increase in the offense

level for a drug trafficking offense “[i]f a dangerous weapon

(including a firearm) was possessed.” “The government has the

burden of proof under § 2D1.1 of showing by a preponderance of

the evidence that a temporal and spatial relation existed between

the weapon, the drug trafficking activity, and the defendant.”

14
United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998)

(internal quotation and citation omitted). “Applying this

standard, the government must provide evidence that the weapon

was found in the same location where drugs or drug paraphernalia

are stored or where part of the transaction occurred." Id.

(internal quotation and citation omitted). The § 2D1.1(b)(1)

adjustment should be applied if the weapon was present, unless

the defendant establishes that it was clearly improbable that the

weapon was connected with the offense. See § 2D1.1(b)(1),

comment. (n.3); United States v. Marmolejo, 106 F.3d 1213, 1216

(5th Cir. 1997).

A PSR is generally considered sufficiently reliable to be

considered by the trial court as evidence in making the factual

determinations required by the sentencing guidelines. United

States v. West, 58 F.3d 133, 138 (5th Cir. 1995). In the present

case, the district court adopted the PSR’s findings that 286.44

pounds of marijuana were found in a toolbox in the bed of the

truck in which Jacquinot was riding and that two unloaded

handguns were found in the cab of the truck. Jacquinot does not

contest these findings and even acknowledges that ammunition was

also found in the truck. Accordingly, the district court did not

err, clearly or otherwise, in finding that § 2D1.1 was applicable

because there was a temporal and spatial relationship between

Jacquinot, the guns, and his drug trafficking offense. See

United States v. Brown, 217 F.3d 247, 261 (5th Cir. 2000)

(applying § 2D1.1(b)(1) adjustment where shotgun found in truck

15
of vehicle used to transport drugs), vacated on other grounds by

Randle v. United States, 121 S. Ct. 1072 (2001); United States v.

Musquiz, 45 F.3d 927, 929, 932 (5th Cir. 1995) (applying §

2D1.1(b)(1) adjustment where gun found under the seat of car used

in attempted theft of narcotics).

There is no merit to Jacquinot’s argument that because he

was not charged with the 18 U.S.C. § 924(c)(1) offense of

possessing a firearm in furtherance of a drug trafficking offense

and because Agent Snodgrass’ memo stated that the guns were not

loaded, no attempt was made to use them, and there was no

evidence that the guns had been intended for use against law

enforcement officers, it is clearly improbable that the guns were

connected to his drug trafficking offense. For purposes of the

§ 2D1.1(b)(1) adjustment, "[i]t is not necessary for possession

of the weapon . . . to be sufficiently connected with the crime

to warrant prosecution as an independent firearm offense."

United States v. Villarreal, 920 F.2d 1218, 1221 (5th Cir. 1991).

And it is not material that the guns were not loaded; 2D1.1(b)(1)

is an added punishment for drug offenders who heighten the danger

of drug trafficking by possessing a dangerous weapon, and the

mere presence of a gun, loaded or not, can escalate the danger.

See United States v. Mitchell, 31 F.3d 271, 278 (5th Cir. 1994).

Finally, it does not matter whether Jacquinot actually used or

intended to use the guns in his drug-trafficking offense; the

pertinent fact is that “they could have been so used.” United

16
States v. Menesses, 962 F.2d 420, 429 (5th Cir. 1992) (emphasis

added). Jacquinot’s sentence must therefore be affirmed.

III. CONCLUSION

Based on the foregoing, we affirm Jacquinot’s conviction and

sentence.

AFFIRMED.

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ROBERT M. PARKER, Circuit Judge, specially concurring.

The absurdity of our Fourth Amendment jurisprudence, as it

relates to the southern border area of Texas, is well illustrated

by Judge Wiener’s dissent in United States v. Zapata-Ibarra. In

addition to the factual scenarios he lists in his dissent that we

have judicially blessed, we can now add spending five seconds at

a Stop sign prior to turning left, and driving 20 mph through a

school zone when the blinking light was off.

The stop was seventy-five miles from the border, well beyond

our artificial fifty mile limit. There is no evidence that the

truck had crossed the border. The articulated reason of lead

car/following car had been dispelled, a fact which decreases the

relevance that at some point (undisclosed for security purposes)

within the park two vehicles passed a sensor. The officers also

mentioned the highly suspicious slowing within the speed limit as

the defendants were being followed and the Kansas license plate

on the vehicle. This last point had particular significance for

one of the officers, since at one point in his career he made a

case involving a Kansas destination.

I find no rational or principled basis upon which to

conclude that either reasonable suspicion or probable cause

existed that would justify the stop in this case. I choose to

specially concur because I recognize that at this point in time,

in this circuit, a dissent would be an exercise in futility. I

remain hopeful that at some point in time, the hysteria regarding

18
the ill-fated war on drugs and its impact on the Fourth Amendment

will subside and the rule of reason will again prevail.

19
ROBERT M. PARKER, Circuit Judge, specially concurring.

The absurdity of our Fourth Amendment jurisprudence, as it

relates to the southern border area of Texas, is well illustrated

by Judge Wiener’s dissent in United States v. Zapata-Ibarra. In

addition to the factual scenarios he lists in his dissent that we

have judicially blessed, we can now add spending five seconds at

a Stop sign prior to turning left, and driving 20 mph through a

school zone when the blinking light was off.

The stop was seventy-five miles from the border, well beyond

our artificial fifty mile limit. There is no evidence that the

truck had crossed the border. The articulated reason of lead

car/following car had been dispelled, a fact which decreases the

relevance that at some point (undisclosed for security purposes)

within the park two vehicles passed a sensor. The officers also

mentioned the highly suspicious slowing within the speed limit as

the defendants were being followed and the Kansas license plate

on the vehicle. This last point had particular significance for

one of the officers, since at one point in his career he made a

case involving a Kansas destination.

I find no rational or principled basis upon which to

conclude that either reasonable suspicion or probable cause

existed that would justify the stop in this case. I choose to

specially concur because I recognize that at this point in time,

in this circuit, a dissent would be an exercise in futility. I

remain hopeful that at some point in time, the hysteria regarding

20
the ill-fated war on drugs and its impact on the Fourth Amendment

will subside and the rule of reason will again prevail.

21