United States v. Reinoso , 232 F. App'x 294 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5031
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALEJANDRO REINOSO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:05-cr-00380-JAB-3)
Submitted: May 30, 2007 Decided: July 9, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas H. Johnson, Jr., GRAY, JOHNSON, BLACKMON, LEE & LAWSON, LLP,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, L. Patrick Auld, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alejandro Reinoso appeals his convictions and sentence
for counterfeiting charges and making false statements to the
Department of Homeland Security. Reinoso was a passenger in a
vehicle parked in an Auto Zone parking lot in Asheboro, North
Carolina. When approached by an Asheboro police officer, the
driver of the vehicle consented to a search of the vehicle.
Counterfeit currency and a firearm and ammunition were found in the
vehicle. Upon arrest, Reinoso gave agents a false name and stated
that he was unaware of the firearm and counterfeit currency. He
proceeded to trial and was convicted for conspiracy to pass and
utter and attempt to pass and utter, keep in possession and conceal
counterfeited Federal Reserve Notes, possession and concealment of
counterfeited Federal Reserve Notes, and false statements to
Department of Homeland Security. At sentencing, he received
enhancements for possession of a firearm and obstruction of
justice, and received a twenty-six month sentence.
First, Reinoso makes a conclusory argument that the
arresting officer’s investigative methods and detention of him were
not supported by an articulable suspicion. Although Reinoso’s
brief cites several Fourth Amendment cases, his only argument
related to his own case is that the officer did not have reasonable
suspicion to seize Reinoso, a passenger, due to the driver’s
- 2 -
nervousness and the passengers’ conflicting travel plans. Reinoso
did not file a motion to suppress evidence prior to trial.
Rule 12(b)(3) of the Federal Rules of Criminal Procedure
requires motions to suppress evidence be made before trial. United
States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Failure to
make a motion to suppress before trial constitutes waiver unless
the trial court grants relief from the waiver under Rule 12(e) for
cause shown. Fed. R. Crim. P. 12(e); United States v. Ricco, 52
F.3d 58, 62 (4th Cir. 1995). Reinoso therefore must show cause for
his failure to file a pretrial motion to suppress. Reinoso failed
to raise the issue of suppression based on improper arrest and
investigative methods prior to or during trial, and he does not
allege cause for his failure to do so. We therefore conclude he
has waived his right to assert his constitutional objections by
failing to file a motion to suppress the evidence prior to trial.
Next, Reinoso alleges that Count Six of the indictment
was defective. Count Six of the superseding indictment charged
Reinoso with a violation of 18 U.S.C.A. § 1001(a)(2) (West 2000 &
Supp. 2007). It alleged that Reinoso falsely told a Secret Service
agent that he was not aware that counterfeit notes and a firearm
were in the vehicle in which he was traveling, and that
Martinez-Orozco and Gonzalez had given him a ride from Greenwood,
South Carolina, to Asheboro, North Carolina, to see his cousin, for
whom Reinoso did not have a name or contact information.
- 3 -
Reinoso alleges that Count Six of the indictment was
defective because, with regard to the firearm statement, the count
alleging possession of a firearm by an illegal alien was dismissed
at the close of evidence. Therefore, he argues, his statement to
the agent was legally correct. Reinoso also alleges in a
conclusory manner that the district court illegally amended the
indictment. Although he provides numerous case citations to
unlawful amendment cases, he does not specify how the court
unlawfully amended the indictment. The record does not reflect an
amendment, and Reinoso does not provide a transcript of the jury
instructions in the joint appendix.
A challenge alleging a defect in the indictment must be
made prior to trial, “but at any time while the case is pending,
the court may hear a claim that the indictment or information fails
to invoke the court’s jurisdiction or to state an offense.” Fed.
R. Crim. P. 12(b)(3). A challenge to a defective indictment is
waived if it is not brought within the deadline outlined in Rule
12(b)(3). However, “[f]or good cause shown, the court may grant
relief from the waiver.” Fed. R. Crim. P. 12(e); see also United
States v. Price, 763 F.2d 640, 643 (4th Cir. 1985) (applying former
version of Rule 12(e)). Reinoso failed to establish that he raised
this issue prior to, or any point during, trial and also failed to
establish any cause for waiver. Therefore, we conclude that the
claim is waived.
- 4 -
Reinoso challenges the enhancements he received to his
sentence for possession of a firearm and obstruction of justice.
Reinoso received an enhancement for possession of a firearm in
connection with the counterfeit charges. See U.S. Sentencing
Guidelines Manual § 2B5.1(b)(4) (2005). He argues that it was
improper to apply the enhancement because the district court found
under Fed. R. Crim. P. 29 that the evidence would not support a
finding of possession of a firearm beyond a reasonable doubt,
absent evidence that he knew or should have known that a
co-conspirator possessed a gun in relation to the offense.
First, a court may impose sentencing enhancements based
on a preponderance standard based on conduct that did not satisfy
a reasonable doubt standard at trial. See United States v. Watts,
519 U.S. 148, 154 (1997). The guideline applicable to
counterfeiting violations is USSG § 2B5.1. The base offense level
under USSG § 2B5.1 is nine. USSG § 2B5.1(a). The Guidelines
further add a two-level enhancement to the base offense level of
nine if “a dangerous weapon (including a firearm) was possessed in
connection with the offense . . . . If the resulting offense level
is less than 13, increase to level 13.” USSG § 2B5.1(b)(4).
Because Reinoso was involved in “jointly undertaken criminal
activity,” this enhancement applies not only if he possessed a
firearm, but also based on “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
- 5 -
criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that
offense . . . .” USSG § 1B1.3(a).
We find that the evidence amply supported the enhancement
for possession, even if Reinoso did not physically possess the
firearm. The size of the rear compartment and items in plain view
prove by a preponderance of the evidence that it was reasonably
foreseeable that the firearm was used to protect the counterfeit
notes found throughout the car and that Reinoso should have been
aware that his co-conspirators possessed the firearm. See United
States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999)
(affirming USSG § 2B5.1(b)(4) enhancement because district court
reasonably concluded that firearm was possessed by defendant “to
protect his [counterfeit] merchandise” and noting dangerousness of
dealing in counterfeit currency).
Finally, Reinoso argues on appeal that the court erred in
applying the enhancement because giving a false name when he was
arrested did not significantly impede the investigation. Reinoso
received a two-level enhancement for providing a false statement to
law enforcement under USSG § 3C1.1. Reinoso was convicted under 18
U.S.C.A. § 1001(a)(2) of making false statements to Department of
Homeland Security and the Secret Service including his statement
that he was not aware that counterfeit notes were in the car in
- 6 -
which he was traveling. Reinoso gave a false name at arrest, and
later his fingerprints were matched to fingerprints on the
counterfeit notes. The presentence report (PSR) states that the
adjustment for obstruction was made on the false statements made to
case agents and the false name given to the magistrate judge and
the district court. At sentencing, the district court found that
Reinoso had made a false statement that he was unaware of the
counterfeit notes and it was later determined that his fingerprints
were found on the notes. Under the commentary to USSG § 3C1.1, “if
the defendant is convicted of a separate count for [obstructive]
conduct, this adjustment will apply and increase the offense level
for the underlying offense (i.e., the offense with respect to which
the obstructive conduct occurred).” USSG § 3C1.1 comment. (n.5).
Although the PSR does include false statements given to
the case agents, the magistrate judge, and the district court, the
district court specifically found that the enhancement applied
based on the false statement that Reinoso was unaware of the
counterfeit notes. Because Reinoso was convicted for making a
false statement related to this obstructive conduct, it was not
error for the court to apply the enhancement under Application Note
5.
We therefore affirm Reinoso’s convictions and sentence.
We dispense with oral argument because the facts and legal
- 7 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 8 -