United States v. Robert Hernandez ( 1996 )

103 F.3d 145

96 CJ C.A.R. 2059

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert HERNANDEZ, Defendant-Appellant.

No. 95-3401.

United States Court of Appeals, Tenth Circuit.

Dec. 17, 1996.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

1

ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. Submitted without oral argument.

3

Robert Hernandez pled guilty to possession with intent to distribute marijuana, preserving his right to appeal the district court's denial of his motion to suppress his statement and other evidence. In reviewing the district court's refusal to suppress the evidence, we must view the evidence in the light most favorable to the government, and we are required to uphold the court's findings of fact unless they are clearly erroneous. United States v. Smythe, 84 F.3d 1240, 1242 (10th Cir.1996).

4

The district court denied the motion to suppress in a lengthy Memorandum and Order filed May 18, 1995. Since that time, this court decided United States v. Botero-Ospina, 71 F.3d 783 (10th Cir.1995) (en banc), which clearly supports the district court's conclusion that the stop in the present case was not pretextual. We have reviewed Mr. Hernandez' other contentions in light of the record, and we are not persuaded that the district court erred. We therefore AFFIRM the judgment of the district court substantially for the reasons given by the district court in its Memorandum and Order, as modified by our opinion in BoteroOspina.1

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions 10th Cir. R. 36.3

1

On November 13, 1996, Mr. Hernandez filed a Motion for Appointment of Counsel which we construe as a motion asking us to replace his present counsel. We deny the motion