United States v. Nelson Reynero-Serna ( 2019 )

Case: 19-40094 Document: 00515216271 Page: 1 Date Filed: 11/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 27, 2019
No. 19-40094
Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
NELSON REYNERO-SERNA,
Defendant−Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:18-CR-335-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Nelson Reynero-Serna entered a conditional guilty plea to conspiracy to
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
Case: 19-40094 Document: 00515216271 Page: 2 Date Filed: 11/27/2019
No. 19-40094
transport aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(I), and (II), re-
serving the right to appeal the adverse ruling on his motion to suppress. He
appeals, claiming that the officer who initiated the traffic stop lacked reasona-
ble suspicion that he had committed a violation under TEX. TRANSP. CODE ANN.
§ 545.363(a) and that no other exception to the warrant requirement of the
Fourth Amendment justifies the initial stop.
Reynero-Serna failed to object to the magistrate judge’s report recom-
mending denial, which was adopted by the district court without a de novo
review. Accordingly, we review for plain error only. See United States v.
Seeley, 331 F.3d 471, 471 (5th Cir. 2003), abrogated on other grounds by Byrd
v. United States, 138 S. Ct. 1518, 1531 (2018). To show plain error, Reynero-
Serna must first establish a forfeited error that is clear or obvious. Puckett v.
United States, 556 U.S. 129, 135 (2009).
The legality of a traffic stop is examined under the two-pronged analysis
in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Brigham, 382 F.3d 500,
506 (5th Cir. 2003) (en banc). This appeal focuses solely on the first Terry
prong—whether the officer’s decision to conduct a stop was justified at its
inception. See id.
Texas law provides, “An operator may not drive so slowly as to impede
the normal and reasonable movement of traffic, except when reduced speed is
necessary for safe operation or in compliance with law.” TEX. TRANSP. CODE
ANN. § 545.363(a). “Driving at a speed that is less than the posted limit is not,
by itself, sufficient for reasonable suspicion; a violation occurs only when the
normal and reasonable movement of traffic is impeded.” Delafuente v. State,
414 S.W.3d 173, 178 (Tex. Crim. App. 2013); see also Richardson v. State,
39 S.W.3d 634, 638−39 (Tex. App.—Amarillo 2000, no pet.).
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No. 19-40094
Reynero’s reliance on Richardson is misplaced because its circumstances
are distinguishable for the reasons found by the district court. Given the
dearth of authority on whether a single vehicle constitutes traffic, see United
States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015), the ambiguity in the
statute, and the danger observed by the officer, the officer could have reasona-
bly believed that he witnessed a violation of Section 545.363(a), see Heien v.
North Carolina, 574 U.S. 54, 57, 65−66 (2014); cf. United States v. Alvarado-
Zarza, 782 F.3d 246, 249−50 (5th Cir. 2015).
Accordingly, Reynero-Serna fails to show that the district court clearly
or obviously erred in denying suppression. See Puckett, 556 U.S. at 135; United
States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc). The judgment
is therefore AFFIRMED.
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