United States v. Teodoro Rosas-Herrera , 499 F. App'x 249 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4159
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TEODORO ROSAS-HERRERA, a/k/a Valentin Villegas Villa,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00160-TDS-1)
Submitted: November 2, 2012 Decided: December 13, 2012
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Angela H. Miller, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Teodoro Rosas-Herrera appeals his conviction and
seventy-one months’ sentence for illegally reentering the United
States after having been deported subsequent to an aggravated
felony conviction. See 8 U.S.C. § 1326(a), (b)(2). For the
following reasons, we affirm.
I.
On February 6, 2011, Detective James Carter (Detective
Carter) of the Alamance County, North Carolina Sheriff’s Office
was on duty driving his patrol vehicle when he observed another
vehicle, traveling in a weaving pattern at approximately ten
miles per hour in the opposite lane, with its front windshield
completely iced over, with the exception of a three-inch by
four-inch area on the driver’s side. In the judgment of
Detective Carter, the driver of the vehicle could not adequately
see approaching traffic from either the vehicle’s right or left
side, and therefore, was driving recklessly in violation of
North Carolina law. See N.C. Gen. Stat. § 20-140(b) (“Any
person who drives any vehicle upon a highway or any public
vehicular area without due caution and circumspection and at a
speed or in a manner so as to endanger or be likely to endanger
any person or property shall be guilty of reckless driving.”).
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After the vehicle passed, Detective Carter turned his
patrol vehicle around in order to effectuate a stop of the
vehicle he had just observed with the iced-over windshield.
Once turned around, Detective Carter observed that such vehicle
had turned left into a driveway and had pulled up to a closed
gate. Detective Carter pulled his patrol vehicle up behind the
vehicle and activated his blue lights.
Detective Carter approached the stopped vehicle and
asked the driver for his driver’s license and vehicle
registration. The driver admitted that he did not have a valid
driver’s license or vehicle registration, but indicated that he
did have a Mexican driver’s license, identified himself as
Carlos Matias Ortiz, and provided a date of birth. As Detective
Carter returned to his patrol vehicle to run a check on the name
and date of birth, he observed the driver exit the vehicle.
Detective Carter then advised the driver to remain in the
vehicle, but the driver fled on foot. Detective Carter called
for back-up and chased the driver on foot for approximately
eight to ten minutes until the driver stumbled and fell. At
this time, Detective Carter secured the driver in handcuffs and
arrested him for resisting a public officer.
By the time Detective Carter had returned to his
patrol vehicle with the handcuffed driver in tow, two fellow
officers had arrived on the scene with a drug-sniffing canine.
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The driver was placed in a patrol vehicle while one of the
officers walked the canine around the driver’s vehicle. The
canine alerted on the driver’s side where the driver’s door had
remained open. In examining where the canine had alerted, the
officer saw a firearm “‘sticking under the seat.’” (J.A. 73).
The firearm turned out to be loaded.
Once at the Alamance County jail, the driver came
before a magistrate judge and again identified himself as Carlos
Matias Ortiz. He was charged with the offenses of resisting a
public officer and illegally carrying a concealed weapon. Of
relevance to the issues on appeal, the driver’s fingerprints,
which had been taken during the routine booking process, matched
the fingerprints of a man named Teodoro Rosas-Herrera. The name
Carlos Matias Ortiz was listed as an alias. The driver
subsequently admitted that his real name was Teodoro
Rosas-Herrera (Rosas-Herrera) and that he was a citizen of
Mexico.
Further investigation revealed that Rosas-Herrera had
been removed from the United States on November 17, 2008,
deported to Mexico, and had never been given permission to
return to the United States. Records also showed that, on March
2, 2007, Rosas-Herrera had been convicted in the United States
District Court for the Western District of North Carolina, of
the offense of conspiracy to possess with intent to distribute a
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quantity of cocaine, which is an aggravated felony under federal
immigration law. See 8 U.S.C. § 1101(a)(43)(B) (defining
“aggravated felony” as “illicit trafficking in a controlled
substance”).
Rosas-Herrera entered a conditional plea of guilty to
one count of illegally reentering the United States after having
been deported subsequent to an aggravated felony conviction, see
id. § 1326(a), (b)(2), reserving the right to challenge on
appeal the district court’s denial of his prior motion to
suppress all information law enforcement collected following his
arrest that revealed his true identity (e.g., his name and
fingerprints). The district court sentenced him to seventy-one
months’ imprisonment and three years’ supervised release. This
timely appeal followed.
II.
Rosas-Herrera first challenges the district court’s
denial of his motion to suppress the evidence of his identity.
According to Rosas-Herrera, Detective Carter unreasonably seized
him in violation of the Fourth Amendment when Detective Carter
initially stopped him, and, therefore, all evidence resulting
from such seizure should have been suppressed. Rosas-Herrera
argues that the initial stop of his vehicle by Detective Carter
violated the Fourth Amendment because Detective Carter lacked
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any reasonable, articulable suspicion that he had committed a
traffic violation in order to justify the stop. Building on
this argument, Rosas-Herrera argues that he was then in exactly
the same legal posture as the defendants in United States v.
Oscar-Torres, 507 F.3d 224 (4th Cir. 2007), and Arizona v. Gant,
556 U.S. 332 (2009).
Rosas-Herrera’s challenge to the district court’s
denial of his motion to suppress is without merit. The Fourth
Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures,” U.S. Const. amend. IV, and the temporary
detention of an individual during the stop of an automobile by a
law enforcement officer constitutes a seizure of the person
within the meaning of the Fourth Amendment, United States v.
Ortiz, 669 F.3d 439, 444 (4th Cir. 2012). Of relevance here,
“[o]bserving a traffic violation provides sufficient
justification for a police officer to detain the offending
vehicle for as long as it takes to perform the traditional
incidents of a routine traffic stop.” United States v. Branch,
537 F.3d 328, 335 (4th Cir. 2008). See also Ortiz, 669 F.3d at
444 (“law enforcement officers may stop a vehicle that they
observe is violating a traffic law”).
In considering the district court’s denial of
Rosas-Herrera’s motion to suppress, we review the district
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court’s legal conclusions de novo and its factual findings for
clear error, construing the evidence in the light most favorable
to the government. United States v. Kelly, 592 F.3d 586, 589
(4th Cir. 2010). Moreover, we must “particularly defer to a
district court’s credibility determinations, for it is the role
of the district court to observe witnesses and weigh their
credibility during a pre-trial motion to suppress.” United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted).
Here, the district court held an evidentiary hearing
on Rosas-Herrera’s motion to suppress, during which it heard
live testimony from Detective Carter regarding, inter alia, the
events leading up to his traffic stop of the vehicle driven by
Rosas-Herrera. The district court found the testimony of
Detective Carter to be credible and concluded that “the
objective evidence support[ed] a reasonable, articulable
suspicion that Rosas-Herrera was operating his vehicle
recklessly under the circumstances by attempting to drive on the
roadway without adequate vision through his windshield.” (J.A.
80). Based on our review of the facts as found by the district
court and the applicable law, we hold that Detective Carter’s
stop of the vehicle driven by Rosas-Herrera was amply supported
by reasonable suspicion, and therefore did not violate the
Fourth Amendment.
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Our holding takes Rosas-Herrera’s case completely
outside of Oscar-Torres, and therefore renders such decision of
no aid to Rosas-Herrera on this issue. In Oscar-Torres, the
defendant was convicted of illegally reentering the United
States following commission of a felony and deportation. 507
F.3d at 226. On appeal, the defendant challenged the district
court’s denial of his motion to suppress the fingerprint
evidence and the records obtained through it as fruit of his
illegal arrest. Id. The government conceded the illegality of
the defendant’s arrest at the appellate level, but argued the
evidence should not be suppressed. Id. at 227. We reversed the
judgment and remanded the case for the district court to
determine whether, in obtaining the defendant’s fingerprints
(and attendant records), the police officers were motivated by
an investigative purpose, and if so, ordered the district court
to suppress such evidence. Id. at 232. Unlike the illegal
arrest in Oscar-Torres, which led to the discovery of the
defendant’s fingerprints and attendant records in that case,
there was no illegal arrest in the present case and Detective
Carter’s initial stop of Rosas-Herrera’s vehicle was legal.
Accordingly, Oscar-Torres is inapposite.
Gant is inapposite as well. In Gant, the Supreme
Court held that “[p]olice may search a vehicle incident to a
recent occupant’s arrest only if the arrestee is within reaching
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distance of the passenger compartment at the time of the search
or it is reasonable to believe the vehicle contains evidence of
the offense of arrest.” 556 U.S. at 351. Rosas-Herrera only
challenges the legality of his initial stop by Detective Carter
and does not separately challenge the legality of the search of
his vehicle following the canine alert on the driver’s side.
See Branch, 537 F.3d at 335-36 (police may order canine sniff of
vehicle as part of routine traffic stop provided it does not
unreasonably delay length of stop). Accordingly, Gant is of no
help to Rosas-Herrera.
For the reasons stated, we hold the district court did
not err in denying Rosas-Herrera’s motion to suppress the
evidence of his identity obtained as the fruit of his initial
stop by Detective Carter. Accordingly, we affirm
Rosas-Herrera’s conviction for illegally reentering the United
States after having been deported subsequent to an aggravated
felony conviction.
III.
Rosas-Herrera challenges his sentence of seventy-one
months’ imprisonment on the basis that the district court should
not have varied upward fourteen months from the high-end of his
advisory sentencing range of forty-six to fifty-seven months’
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imprisonment under the United States Sentencing Guidelines (USSG
or Guidelines). Finding no error, we affirm.
We review the seventy-one month sentence imposed upon
Rosas-Herrera by the district court for reasonableness under the
deferential abuse-of-discretion standard. United States v.
King, 673 F.3d 274, 283 (4th Cir.), cert. denied, 133 S. Ct. 216(2012). In reviewing a variant sentence as in the present case,
we consider “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect to the extent of the divergence from the sentencing
range.” United States v. Hernandez–Villanueva, 473 F.3d 118,
123 (4th Cir. 2007). Notably, the district court “has
flexibility in fashioning a sentence outside of the Guidelines
range,” and need only set forth sufficient explanation to
satisfy us that it considered the parties’ arguments and has a
reasoned basis for its decision. United States v.
Diosdado-Star, 630 F.3d 359, 364 (4th Cir.), cert. denied, 131
S. Ct. 2946 (2011).
Our review of the entire record unequivocally shows
that the district court specifically identified its reasons for
the above-Guidelines sentence, which was based on the Sentencing
Guidelines and the 18 U.S.C. § 3553(a) factors, and related to
the particular facts of Rosas-Herrera’s case. For example, the
district court expressly stated its view that a seventy-one
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month sentence was necessary to deter Rosas-Herrera from
committing further crimes “particularly given the fact that a
federal district court had already sentenced him to 57 months,
and that proved to be insufficient to deter [Rosas-]Herrera from
returning to the United States without permission and, on top of
that, [he possessed] a loaded firearm.” (J.A. 136); see
§ 3553(a)(2)(B) (“The court, in determining the particular
sentence to be imposed, shall consider . . . the need for the
sentence imposed . . . to afford adequate deterrence to criminal
conduct . . . .”). For a second example, the district court
stated its view that a seventy-one month sentence was necessary
“to protect the public, particularly given his drug distribution
conviction and then his recent detention after having been
caught with a loaded firearm ready to fire.” (J.A. 136); see
§ 3553(a)(2)(C) (“The court, in determining the particular
sentence to be imposed, shall consider . . . the need for the
sentence imposed . . . to protect the public from further crimes
of the defendant . . . .”). Our review of the entire record
establishes that the district court acted reasonably in both its
decision to vary upward from Rosas-Herrera’s advisory sentencing
range under the Guidelines and with respect to the extent of its
variance. Accordingly, we affirm Rosas-Herrera’s sentence.
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IV.
In conclusion, we affirm Rosas-Herrera’s 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
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