United States v. Jesus Soto-Valencia , 500 F. App'x 589 ( 2012 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                NOV 21 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 11-30350
    Plaintiff - Appellee,              D.C. No. 1:10-cr-30058-PA-4
    v.
    MEMORANDUM*
    JESUS HUMBERTO SOTO-VALENCIA,
    AKA Jesus Soto-Valencia,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Oregon
    Owen M. Panner, Senior District Judge, Presiding
    Argued and Submitted November 5, 2012
    Portland, Oregon
    Before: ALARCÓN, McKEOWN, and NGUYEN, Circuit Judges.
    Jesus Soto-Valencia appeals his conviction by conditional guilty plea and
    sentence for conspiracy to manufacture 1000 or more marijuana plants in violation
    of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(A)(vii) and § 846. He contends that the district
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    court erred by denying his motion to suppress and finding him ineligible for safety-
    valve relief. We have jurisdiction under 
    28 U.S.C. § 1291
    , and we affirm.
    Soto-Valencia’s voluntary decision to stop his vehicle and converse with
    Officer Thomas for the first 30 seconds or so of the encounter did not implicate the
    Fourth Amendment. See United States v. Al Nasser, 
    555 F.3d 722
    , 726 (9th Cir.
    2009). Thereafter, in light of the totality of the circumstances, Thomas had
    reasonable suspicion to detain Soto-Valencia to check his identification. See
    United States v. Christian, 
    356 F.3d 1103
    , 1106 (9th Cir. 2004). Thomas
    encountered Soto-Valencia driving miles past a road closure sign in an area of
    suspected marijuana grow operations, was told an implausible story about a
    camping trip, observed the vehicle occupants’ scared demeanor and inappropriately
    heavy clothing, and knew from an intelligence briefing that drug trafficking
    organizations were bringing groups of Hispanic males into the area to staff the
    grow operations. Cf., e.g., United States v. Baron, 
    94 F.3d 1312
    , 1319 (9th Cir.
    1996), overruled on other grounds by United States v. Heredia, 
    483 F.3d 913
     (9th
    Cir. 2007) (en banc).
    Upon learning from Soto-Valencia’s identification card that he was likely
    connected to an individual who had been arrested earlier that day in the suspected
    grow area, Thomas had an additional ground to suspect that Soto-Valencia was
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    involved in the marijuana operation. It is reasonable to conduct further
    investigations “based on facts learned and observations made” during the course of
    an otherwise lawful stop. United States v. Turvin, 
    517 F.3d 1097
    , 1102 (9th Cir.
    2008).
    That Soto-Valencia’s vehicle was not included on Thomas’s “probable cause
    sheets” is of no moment. There were only two vehicles listed on the sheets, and
    although officers had already stopped both and arrested their occupants, Thomas
    suspected from the intelligence briefing that there were many persons in various
    locations throughout the national forest who were growing marijuana. Likewise,
    Thomas’s observation that Soto-Valencia and his companions did not “stink of
    weed” did not diminish the reasonableness of his suspicion. Soto-Valencia was
    heading into the suspected marijuana grow area and had no obvious reason to
    transport marijuana in that direction.
    The stop’s scope and duration were also reasonable. Soto-Valencia and his
    companions remained in their car until their arrest, and Thomas did no more than
    check Soto-Valencia’s identification and ask a few questions relevant to the
    investigation. The investigatory stop lasted no more than 23 minutes—a
    reasonable time given the language barrier, the other vehicle that Thomas was
    already dealing with, and the fact that the Forest Service officers with whom
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    Thomas needed to communicate were already busy interrogating and processing
    the arrestees from earlier in the day. See United States v. Sharpe, 
    470 U.S. 675
    ,
    685 (1985).
    Soto-Valencia also challenges the district court’s finding at sentencing that
    he did not qualify for safety-valve relief because he was an organizer, leader,
    manager, or supervisor of others in the criminal activity. See 
    18 U.S.C. § 3553
    (f)(4); U.S. Sentencing Guidelines Manual § 5C1.2(a)(4). Soto-Valencia
    helped recruit persons to work at the grow sites, purchased supplies for them,
    transported them to work, and expected to earn a share of the overall marijuana
    yield rather than—as did the workers at the grow sites—a daily payment. In light
    of this evidence, the district court did not clearly err in finding that Soto-Valencia
    was, to some extent, responsible for organizing others to carry out the grow
    operation. Consequently, the court did not abuse its discretion in ruling Soto-
    Valencia ineligible for safety-valve relief. See United States v. Riley, 
    335 F.3d 919
    , 929 (9th Cir. 2003) (quoting United States v. Harper, 
    33 F.3d 1143
    , 1151 (9th
    Cir. 1994)).
    The record contradicts Soto-Valencia’s contention that the district court
    believed it would be unjust to withhold application of the safety valve in his case.
    Even if he were correct, however, the court had no discretion to sentence him
    4
    below the mandatory minimum once it found that Soto-Valencia failed to meet one
    of the requirements for safety-valve eligibility. See United States v.
    Cardenas-Juarez, 
    469 F.3d 1331
    , 1334 (9th Cir. 2006); see also United States v.
    Biao Huang, 
    687 F.3d 1197
    , 1203 (9th Cir. 2012).
    Soto-Valencia’s remaining arguments relate to the purported tension
    between 
    18 U.S.C. § 3553
    (a)—which requires a district court to “impose a
    sentence sufficient, but not greater than necessary” and to consider various
    case-specific factors, including “the need to avoid unwarranted sentence
    disparities” among similarly situated defendants—and § 3553(f) insofar as it
    establishes fixed criteria for avoiding the application of a statutory minimum
    sentence. We have previously considered and rejected this line of attack. See
    United States v. Wipf, 
    620 F.3d 1168
    , 1170–71 (9th Cir. 2010). Moreover, the
    district court did consider the § 3553(a) factors and concluded that the ten-year
    sentence would be appropriate even without the mandatory minimum.
    AFFIRMED.
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