United States v. Leon-Sanchez ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4856
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALFREDO LEON-SANCHEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-32)
Submitted: April 27, 2005 Decided: September 23, 2005
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alfredo Leon-Sanchez appeals his jury conviction and
sentence for possession with intent to distribute five hundred or
more grams of cocaine in violation of 21 U.S.C. § 841 (2000).
Finding no error, we affirm.
Leon-Sanchez argues that the district court erred in
quashing his subpoena for documents held by the custodian of
records for the sheriff’s department of Iredell County, North
Carolina. The motions to quash the subpoena were referred to a
magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) (2000). The
magistrate judge granted the motions in part, thereby quashing some
of the document requests and ordering production of others. The
district court, after a stay of the magistrate judge’s order,
reversed the magistrate judge’s order in part, thereby quashing the
entire subpoena. See 28 U.S.C. § 636(b)(1)(A). Thus, this court
must determine if the district court erred in reversing in part the
magistrate judge’s order under § 636(b)(1)(A), which authorizes the
district court to reconsider any pretrial matter referred to a
magistrate judge if the magistrate judge’s order is clearly
erroneous or contrary to law. After reviewing the materials before
us on appeal, we conclude that the district court did not err in
reconsidering the magistrate judge’s order and quashing Leon-
Sanchez’s subpoena.
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Leon-Sanchez also argues that the district court erred in
denying his motion to suppress. This court reviews the factual
findings underlying a motion to suppress for clear error, and the
district court’s legal determinations de novo. See Ornelas v.
United States, 517 U.S. 690, 699 (1996). When a suppression motion
has been denied, this court reviews the evidence in the light most
favorable to the government. See United States v. Seidman, 156
F.3d 542, 547 (4th Cir. 1998).
With these standards in mind, we conclude that the
sheriff’s officer had reasonable suspicion of unlawful conduct to
make a traffic stop of the vehicle Leon-Sanchez was operating. See
Terry v. Ohio, 392 U.S. 1, 20-22 (1968); United States v. Wilson,
205 F.3d 720, 722-23 (4th Cir. 2000); see also United States v.
Hassan El, 5 F.3d 726, 731 (4th Cir. 1993) (noting a traffic
violation, no matter how minor, gives an officer probable cause to
stop the driver). We further conclude that, based on the totality
of the circumstances, the officer had a reasonable suspicion that
criminal activity was afoot in order to ask Leon-Sanchez further
questions after the traffic stop was complete. See United
States v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000).
We also conclude that the district court did not err in
finding that Leon-Sanchez freely and voluntarily consented to the
search of his vehicle. See Ferguson v. City of Charleston, 308
F.3d 380, 396 (4th Cir. 2002) (noting voluntary consent to a search
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is an exception to the Fourth Amendment prohibition against
unreasonable searches). Even if he had not consented, the officers
did not impermissibly broaden the scope of the stop by searching
Leon-Sanchez’s car and conducting a canine sniff for drugs. See
Illinois v. Caballes, 125 S. Ct. 834, 838 (2005) (“A dog sniff
conducted during a concededly lawful traffic stop that reveals no
information other than the location of a substance that no
individual has any right to possess does not violate the Fourth
Amendment.”). Furthermore, the drug dog alert gave the officers
probable cause to conduct a warrantless search of the bumper, where
they found the cocaine. See United States v. Buchanon, 72 F.3d
1217, 1228 (6th Cir. 1995).
Leon-Sanchez also argues evidence should have been
suppressed under the Fifth Amendment’s equal protection clause
because he was stopped solely because of his race. See Whren v
United States, 517 U.S. 806, 813 (1996). However, the district
court found that the officer could not and did not see the
defendant prior to stopping his vehicle. We conclude this factual
finding was not clearly erroneous. Accordingly, the district
court properly dismissed Leon-Sanchez’s motion to suppress.
Leon-Sanchez also argues that the district court should
have granted his motion for a judgment of acquittal or new trial.
This court must affirm Leon-Sanchez’s jury conviction if there is
substantial evidence, when viewed in the light most favorable to
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the Government, to support the jury’s verdicts. Glasser v. United
States, 315 U.S. 60, 80 (1942). We conclude there was sufficient
evidence to support the jury’s verdict. We also conclude that the
district court did not abuse its discretion in denying Leon-
Sanchez’s motion for a new trial. See Fed. R. Crim. P. 33(a).
Finally, Leon-Sanchez challenges his sentence under
Blakely v. Washington, 124 S. Ct. 2531 (2004).1 See also United
States v. Booker, 125 S. Ct. 738 (2005). However, he apparently
concedes that the jury found him guilty of possessing the full
amount of cocaine found in his vehicle (3.98 kilograms).
Accordingly, as the sentence was based upon the jury’s findings of
drug quantity and not judicial factfinding, we find no Sixth
Amendment error under Booker.2 Leon-Sanchez claims his jury
verdict for 3.98 kilograms of cocaine was an unconstitutional
variance from his indictment, which alleged the possession (with
intent) of 500 or more grams of cocaine. We find there was no
unconstitutional variance. See United States v. Randall, 171 F.3d
195, 203 (4th Cir. 1999) (noting a variance does not violate
constitutional rights unless the defendant is prejudiced or is
exposed to double jeopardy).
1
He raised this objection at sentencing.
2
Leon-Sanchez does not argue his sentence was improper under
Booker even though he was sentenced under a mandatory guidelines
scheme. In any event, any Booker error would be harmless because
the district court concluded that it would have imposed an
identical sentence if the sentencing guidelines were invalidated.
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Accordingly, we affirm Leon-Sanchez’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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