IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 20, 2009
No. 08-40559
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAVID LYLE GONZALES
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CR-36-1
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Lyle Gonzales appeals his bench trial conviction for transporting
and moving undocumented aliens within the United States by motor vehicle. He
contends that the district court erred by denying his motion to suppress all
evidence obtained following a traffic stop of his vehicle because the Border Patrol
agent who stopped his vehicle lacked reasonable suspicion.
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-40559
In reviewing the denial of a motion to suppress, the district court’s
findings of fact are reviewed for clear error and its conclusions of law are
reviewed de novo. United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir.
2005). “[W]e view the evidence in the light most favorable to the party
prevailing below, which in this case is the Government.” Id.
“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.” United
States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). In assessing whether the
stop was supported by reasonable suspicion, we consider the totality of the
circumstances in light of factors set forth in United States v. Brignoni-Ponce, 422
U.S. 873, 884-85 (1975). Id.
In the present case, United States Border Patrol Agent Donald Joseph
Kenefrick testified that he initially observed Gonzales’s Ford Expedition on
Highway 44 near Freer, Texas, almost 60 miles from the Mexican border. As
there was no evidence presented that Agent Kenefrick had reason to believe that
Gonzales’s vehicle had come from the border, the proximity to the border factor
is not present and we must examine the remaining factors charily. See United
States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir. 1998).
Agent Kenefrick, who has worked as a Border Patrol agent in the Freer
area for four years, testified that the area was commonly used by smugglers, as
demonstrated by the daily complaints the Border Patrol received from area
residents and the number of arrests he had made in the area. This testimony
showed that the characteristics of the area factor, the information about recent
illegal trafficking in the area factor, and the experience of the agent factor
weighed in favor of reasonable suspicion. See Jacquinot, 258 F.3d at 428-30.
Agent Kenefrick averred that it was unusual for a vehicle not related to the oil
industry to be traveling on Highway 44 at 5:30 a.m. as Gonzales was, making
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No. 08-40559
the usual traffic patterns factor weigh in favor of reasonable suspicion. See id.
at 429. He further maintained that the rear bumper of Gonzales’s Expedition
was riding lower than the front bumper, indicating that something heavy was
in the vehicle beyond the driver and four passengers that he was able to see.
This testimony showed that the characteristics of the vehicle factor and the
number, appearance, and behavior of the passengers factor weighed at least
slightly in favor of reasonable suspicion. See United States v. Lopez-Gonzalez,
916 F.2d 1011, 1015 (5th Cir. 1990); United States v. Zapata-Ibarra, 212 F.3d
877, 883 (5th Cir. 2000). Agent Kenefrick testified that when Gonzales passed
his marked patrol vehicle, Gonzales tapped his breaks even though he was not
speeding. When Gonzales approached Freer, he made a left turn onto a
residential street, and Agent Kenefrick testified that smugglers commonly
turned onto a residential street in Freer to avoid the well lit intersection of
Highway 59 and Highway 16 because there was usually a law enforcement
officer stationed at that intersection. Accordingly, the behavior of the driver
factor weighed in favor of reasonable suspicion. See Jacquinot, 258 F.3d at 429-
30; United States v. Villalobos, 161 F.3d 285, 291 (5th Cir. 1998).
While the important proximity to the border factor weighed against
reasonable suspicion, the totality of the circumstances showed that Agent
Kenefrick had a reasonable suspicion of illegal activity sufficient to make the
traffic stop. See Jacquinot, 258 F.3d at 430; United States v. Aldaco, 168 F.3d
148, 150-52 (5th Cir. 1999). Accordingly, the district court did not err by denying
the motion to suppress. See Jacquinot, 258 F.3d at 430.
Gonzales also argues that the written judgment does not properly reflect
the correct term of supervised release imposed by the district court at a
resentencing hearing. The written judgment, however, was entered after the
resentencing hearing, and the minute entry of the resentencing hearing is
unsigned and does not unequivocally show that the written judgment is
incorrect. A transcript of the resentencing hearing does not appear in the record,
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No. 08-40559
and Gonzales has not requested a transcript of the hearing for the present
appeal. Gonzales, as the appellant, has the duty to request the necessary
transcripts for his appeal. See F ED. R. A PP. P. 10(b)(1); F ED. R. A PP. P. 11(a). As
the record is insufficient to substantiate Gonzales’s assertion, he is not entitled
to relief. See Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992). If Gonzales can
demonstrate in the future that the written judgment does not reflect the oral
pronouncement of sentence and is the result of a clerical error, he can file a
motion to correct the clerical error in the district court. See F ED. R. C RIM. P. 36.
AFFIRMED.
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