United States v. Juan Moreno ( 2020 )

FILED
NOT FOR PUBLICATION
APR 22 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50293
Plaintiff-Appellee, D.C. No. 8:17-cr-00145-AG-1
v.
MEMORANDUM*
JUAN MORENO, AKA Moose, AKA
Juan Crisanto Moreno,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted, Submission Deferred April 14, 2020**
Resubmitted April 22, 2020
Pasadena, California
Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit
Judges.
Juan Moreno appeals his conviction for being a felon in possession of
ammunition and the district court’s denial of his motion to correct his sentence
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under Federal Rule of Criminal Procedure 35(a). We affirm. We agree that the
challenged supervised release condition is unconsitutionally vague, and we remand
to the district court for modification of the condition. Because the parties are
familiar with the history of this case, we need not recount it here.
“We review the district court's denial of [a] motion to suppress de novo and
the underlying factual findings for clear error.” United States v. Zapien, 861 F.3d
971, 974 (9th Cir. 2017) (citing United States v. Rodriguez-Preciado, 399 F.3d
1118, 1125, amended by 416 F.3d 939 (9th Cir. 2005)). “The clear error standard
is deferential, and is not met unless the reviewing court is left with a definite and
firm conviction that a mistake has been committed.” In re Zermeno-Gomez, 868
F.3d 1048, 1052 (9th Cir. 2017) (internal quotation marks and citation omitted).
“[W]e review the district court's determination of whether [a defendant’]s prior
conviction was a controlled substance offense de novo.” United States v. Brown,
879 F.3d 1043, 1047 (9th Cir. 2018). We review constitutional challenges to
supervised release conditions de novo. United States v. Watson, 582 F.3d 974, 981
(9th Cir. 2009).
1. The district court did not commit reversible error in denying the
suppression motion. In order to justify a Terry stop, an officer must have
reasonable suspicion that a suspect is engaging in criminal activity. Terry v. Ohio,
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392 U.S. 1, 21 (1968). Here, the stop was predicated on an encounter the previous
day in which officers believed Moreno had fled from them and dropped a backpack
containing a digital scale associated with drug transactions. Moreno and the
officer provided different accounts, and portions of the officer’s testimony were
shown to be questionable or incorrect. However, given the record and the
deference owed to inferences drawn by the district court, see United States v.
Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013) (en banc), the district court did
not commit clear error in crediting the testimony and concluding that the Terry
stop was justified. The officer testified that Moreno was the same individual the
police had encountered the previous day, and a body cam video showed other
officers stating to the defendant that they had seen him the previous day. Moreno
disputes that he was the individual that the officers had encountered. However, the
district court reasonably resolved that dispute in the officer’s favor. And although
an officer’s good faith alone is not enough to warrant a stop, Terry, 392 U.S. at 22,
“[a] mistaken premise can furnish grounds for a Terry stop, if the officers do not
know that it is mistaken and are reasonable in acting upon it.” United States v.
Garcia-Acuna, 175 F.3d 1143, 1147 (9th Cir. 1999) (internal quotation marks and
citations omitted). Therefore, because the officer could point to specific and
articulable facts to support his belief that Moreno was the individual he had
3
observed the day before and there was reason to believe he was involved in
criminal activity, it was not reversible error for the district court to conclude the
Terry stop was justified to investigate the officer’s suspicion. See United States v.
Hensley, 469 U.S. 221, 229 (1985).
2. The district court did not err in concluding that the officers had
reasonable suspicion to conduct a frisk. The officer testified that he heard another
officer ask Moreno if he had anything illegal on him, and that Moreno answered
“yes.” Moreno denies making this statement. In addition, the officer testified that
he saw the butt of a gun sticking out from Moreno’s pocket, and the butt of the gun
is visible on body cam footage from the day of the arrest. The district court
credited the officer’s account. Thus, given the totality of the circumstances, see
Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016) (reasonable suspicion
considers the totality of the circumstances), the district court did not commit
reversible error in concluding that the officers had reasonable suspicion for the
frisk, see Terry, 392 U.S. at 24 (a frisk is justified upon a reasonable suspicion that
a suspect “is armed and presently dangerous to the officer or to others”).
In short, given our deferential standard of review, we conclude that the
district court did not commit reversible error in denying the suppression motion.
3. The district court did not commit reversible error in denying Moreno’s
motion to correct his sentence pursuant to Fed. R. Crim P. 35(a). The motion was
4
predicated on Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), but that decision
was vacated and withdrawn, Lorenzo v. Whitaker, 752 Fed. App’x 482 (9th Cir.
2019). Therefore, because California’s methamphetamine definition has not been
found overbroad, the district court did not clearly err in considering Moreno’s
previous state methamphetamine convictions when calculating the offense level.
4. We vacate the challenged supervised release condition because it is
overbroad in one respect and fails to provide the requisite determinate guidance to
both Moreno and the probation officer. See United States v. Evans, 883 F.3d 1154,
1164 (2019). The challenged supervised release condition is unconstitutionally
vague, and we remand to the district court.
AFFIRMED in part; REMANDED in part.
5
FILED
United States v. Moreno, No. 18-50293
APR 22 2020
W. Fletcher, J., dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I dissent on the grounds that the district court should have granted the
motion to suppress.