United States v. Hamerter , 91 F. App'x 261 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-4086
HENDRICK JAMES HAMERTER, a/k/a
Eric Hendrick, a/k/a Ham,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-01-518)
Submitted: July 31, 2003
Decided: March 2, 2004
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael J. McCarthy, MCCARTHY & SULLIVAN, Bowie, Mary-
land, for Appellant. Thomas M. DiBiagio, United States Attorney,
Mythili Raman, Assistant United States Attorney, Greenbelt, Mary-
land, for Appellee.
2 UNITED STATES v. HAMERTER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Hendrick James Hamerter pled guilty to conspiracy to possess with
intent to distribute and distribute more than 1000 kilograms of mari-
juana, 21 U.S.C. § 846 (2000), but reserved the right to appeal the dis-
trict court’s denial of his motion to suppress marijuana seized from
his commercial tractor trailer truck. Hamerter received a sentence of
127 months imprisonment. He appeals his sentence and the district
court’s denial of his suppression motion. We affirm.
Hamerter was arrested on September 6, 2001, while driving his
commercial tractor trailer from El Paso, Texas, to Tampa, Florida,
with 958 pounds (434.5 kilograms) of marijuana in his truck. The
marijuana was found by a Texas state trooper during a routine safety
inspection. Unknown to Hamerter or the trooper who stopped him, an
investigation of the conspiracy was already under way and agents of
the Drug Enforcement Administration had Hamerter’s home in
Tampa under surveillance. Several co-defendants were subsequently
arrested in Maryland and in Texas.
Hamerter moved to suppress the evidence seized from his truck. At
the suppression hearing, the government produced evidence that the
state trooper stopped Hamerter’s truck to perform a random safety
inspection of a commercial vehicle, which is authorized under
§ 644.103 of the Texas Transportation Code. The district court deter-
mined that the marijuana was admissible because the stop of
Hamerter’s truck was initially a valid non-pretextual warrantless regu-
latory search, and that the trooper and his back-up officers had proba-
ble cause to arrest Hamerter and conduct a full search of the truck
after a drug-sniffing dog alerted on the truck vents and then on duffle
bags found in the trailer with a load of tomatoes. Alternatively, the
court found that the marijuana was admissible under the inevitable
discovery doctrine.
UNITED STATES v. HAMERTER 3
The district court’s denial of a suppression motion is reviewed de
novo, but its factual determinations are reviewed for clear error.
United States v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997). Hamerter
maintains on appeal that the trooper’s warrantless search of his truck
violated the Fourth Amendment. He does not challenge the district
court’s conclusion that Texas’s commercial vehicle inspection
scheme is permissible under the regulatory exception to the warrant
requirement. See New York v. Burger, 482 U.S. 691 (1987). Instead,
he argues that the stop was illegal because it was pretextual, relying
on Whren v. United States, 517 U.S. 806 (1996), and United States
v. Wilson, 205 F.3d 720, 724 (4th Cir. 2000) (holding that vehicle
stop without articulable, reasonable suspicion violates Fourth Amend-
ment). This argument is unavailing because, based on the record
before us, the district court’s finding that the trooper was not using
the regulatory stop and search as a pretext to investigate other crimes
is not clearly erroneous. Moreover, the record discloses that the regu-
latory search quickly produced reasonable suspicion to detain
Hamerter and then probable cause for an arrest and a full search of
the truck. See United States v. Johnson, 285 F.3d 744, 748 (8th Cir.
2002) (reasonable suspicion developed during safety inspection may
permit longer detention). Although Hamerter argues that the officers
should have obtained a search warrant before searching the trailer
once contraband was suspected, a warrant is not required for a search
of a vehicle once the police have probable cause to believe it contains
contraband or evidence of a crime. United States v. Ross, 456 U.S.
798, 804-09 (1982). Finally, Hamerter was not illegally arrested when
the trooper handcuffed him after seeing the first duffel bag. United
States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989) (handcuffing
of suspect to maintain status quo and protect officer did not convert
Terry* stop into arrest). Consequently, we conclude that the district
court did not err in denying the motion to suppress the marijuana
seized from Hamerter’s truck.
At sentencing, the issues relevant to this appeal were whether
Hamerter had a minor or minimal role in the conspiracy, U.S. Sen-
tencing Guidelines Manual § 3B1.2 (2002), and whether he qualified
for a reduction under the safety valve provision in USSG
§ 2D1.1(b)(6). With respect to these issues, the government submitted
*Terry v. Ohio, 392 U.S. 1 (1968).
4 UNITED STATES v. HAMERTER
transcripts of intercepted phone conversations between Hamerter and
his co-defendant, Roland Anderson.
The district court determined that Hamerter was not a minor or
minimal participant, in part because of the quantity of marijuana he
was transporting, and in part because the evidence revealed that,
rather than being a mere courier, Hamerter had participated in the
planning and timing of the delivery of the marijuana. The district
court’s determination of a defendant’s role in the offense is a factual
question reviewed for clear error. United States v. Reavis, 48 F.3d
763, 768 (4th Cir. 1995). A defendant has a minor role if he is "less
culpable than most other participants," but his role is not minimal,
i.e., among the least culpable. USSG § 3B1.2, comment. (n.5). The
test for whether a defendant had a minor role is whether his conduct
was "material or essential to committing the offense." United States
v. Akinkoye, 185 F.3d 192, 202 (4th Cir. 1999).
Hamerter contends that he was entitled to at least a two-level
reduction for having a minor role in the conspiracy because a DEA
agent testified at the suppression hearing that Hamerter was a trans-
porter and had made just one prior trip carrying marijuana for Ander-
son. Hamerter argues that his minor role is evidenced by the fact that
he was recruited as a truck driver into an ongoing conspiracy that con-
tinued for a while after he was arrested. However, the transcripts of
Hamerter’s conversations with Anderson reveal that they discussed
the difficulties Hamerter experienced in dealing with their sources in
El Paso, and that they conferred about who they should deal with in
the future. Anderson also discussed with Hamerter how he could
move the marijuana from Tampa to Maryland. Hamerter volunteered
first his wife and then a cousin in Atlanta to assist Anderson and co-
defendant Clayton Maragh, and Anderson accepted Hamerter’s assis-
tance. In light of this evidence, we conclude that the district court did
not clearly err in finding that Hamerter was not a minor participant
in the offense.
With respect to the safety valve reduction under § 2D1.1(b)(6), the
only dispute was whether Hamerter had satisfied the fifth requirement
set out in § 5C1.2, namely, that by the time of sentencing a defendant
must have "truthfully provided to the Government all information and
evidence he has concerning the offense or offenses that were part of
UNITED STATES v. HAMERTER 5
the same course of conduct or common scheme or plan." The govern-
ment maintained that Hamerter had not truthfully disclosed informa-
tion about his own conduct or acknowledged that his wife was
involved in the conspiracy. The district court agreed that Hamerter
had not met the defendant’s burden of showing that he has made an
affirmative effort to disclose to the government all the information he
has about the offense. United States v. Withers, 100 F.3d 1142, 1146
(4th Cir. 1996). The district court’s factual findings underlying its
determination as to whether a defendant has met the criteria set out
in § 5C1.2 to qualify for a safety valve reduction under § 2D1.1(b)(6)
are reviewed for clear error. United States v. Wilson, 114 F.3d 429,
432 (4th Cir. 1997).
Hamerter argues that he complied with this requirement by cooper-
ating with the Assistant United States Attorney for the Eastern Dis-
trict of Texas when he was interviewed the day after his arrest, and
later in discussions with authorities in Maryland. Hamerter’s attorney
stated at sentencing that he had recently offered to have his client
meet once again with the government, but that the offer was refused.
The government responded that Hamerter had offered to meet for the
purpose of providing information about other persons and that, based
on its experience with Hamerter, the government was not interested.
The transcripts of the intercepted calls between Hamerter and
Anderson show that Hamerter’s wife was involved to some extent in
the conspiracy. She took a message from Anderson for Hamerter on
more than one occasion. Anderson also agreed to wire money to her.
Hamerter does not dispute that he refused to disclose his wife’s
involvement, but states that by making himself available to meet with
the government once again to provide "all the information the govern-
ment desired," he took all the steps necessary to fulfil the fifth ele-
ment of § 5C1.2.
A defendant seeking to comply with § 5C1.2 has the burden of pro-
viding all relevant information to the government even if the govern-
ment does not meet with him at all. United States v. Ivester, 75 F.3d
182, 185-86 (4th Cir. 1996). Because Hamerter did not avail himself
of the opportunities he had to disclose the information he possessed,
the district court did not clearly err in finding that he had failed to
qualify for the safety valve reduction.
6 UNITED STATES v. HAMERTER
We therefore affirm the conviction and sentence. We dispense with
oral 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