United States v. Richard Herring , 442 F. App'x 298 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50001
Plaintiff - Appellee, D.C. No. 2:05-cr-00235-CBM-10
v. MEMORANDUM *
RICHARD CHENY HERRING,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted June 10, 2011
Pasadena, California
Before: B. FLETCHER, and N.R. SMITH, Circuit Judges, and R. BREWSTER,
District Judge.**
Richard Cheny Herring, a federal prisoner serving a 110-month sentence
following his jury conviction for conspiracy to distribute more than 50 grams of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Rudi M. Brewster, Senior United States District Judge
for the Southern District of California, sitting by designation.
methamphetamine and possession with the intent to distribute more than 50 grams
of methamphetamine, appeals three aspects of his criminal proceedings. We have
jurisdiction pursuant to 28 U.S.C. §1291. We affirm.
First, the district court properly denied the motion to suppress the
methamphetamine found in the car Herring was driving. The collective knowledge
of the law enforcement officers, who had been watching the activity in and around
the main house and listening to wiretaps of the telephone conversations, provided
reasonable suspicion to believe that Herring had narcotics in the car. United States
v. Hensley, 469 U.S. 221, 232 (1985); United States v. Burkett, 612 F.3d 1103,
1107 (9th Cir. 2010). In any event, (1) the traffic stop was proper based on the seat
belt violations by Herring and the child passenger1; (2) the additional brief
questioning was reasonable, Muehler v. Mena, 544 U.S. 93, 101 (2005); United
States v. Turvin, 517 F.3d 1097, 1101-04 (9th Cir. 2008); United States v. Mendez,
476 F.3d 1077, 1080 (9th Cir. 2007); and (3) Herring consented to the search.
1
Herring questions the credibility of the police officer’s testimony that he
saw Herring was not wearing his seat belt. As the government notes, Herring
cannot challenge the traffic stop for the first time on appeal. United States v.
Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). Even if the argument was not
waived, no evidence contradicts the officer’s observation, particularly since
Herring was in fact cited for not wearing a seat belt. United States v. Ibarra, 345
F.3D 711, 713-15 (9 th Cir. 2003).
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Second, there was sufficient evidence to convict Herring of conspiring to
distribute methamphetamine with the members of the Hard Times Gang. The
taped conversations show that Herring was more than a one-time buyer. Herring
acted as both a supplier and a distributor of methamphetamine. The gang’s leader
would not have called Herring to obtain a cutting agent to dilute a product that
Herring would buy. This communication contemplated a sale to a stranger. The
jury could draw a reasonable inference that Herring’s ready supply of
methamphetamine and dilutant showed he was involved in the conspiracy to
distribute drugs to others. Moreover, Herring knew how to send a courier to make
a delivery and he knew whom to meet in the parking lot to pick up
methamphetamine. Though Herring has cognitive limitations, he was familiar with
the code words used in the taped conversations, which were interpreted and
decoded for the jury by an expert witness. These facts suggest an ongoing
involvement with the overall scheme.
Third, the district court did not commit clear error by finding that Herring
was not entitled to the acceptance of responsibility adjustment. Herring was not
willing to plead guilty to the conspiracy count and he never admitted all of his
criminal conduct. United States v. Schales, 546 F.3d 965, 976 (9th Cir. 2008). He
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wanted a plea bargain on his own terms.2 United States v. Nielsen, 371 F.3d 574,
579, 582-83 (9th Cir. 2004) (defendant’s offer to enter conditional guilty plea does
not entitle him to adjustment). When the sentencing court invited Herring to
speak, he did not express remorse or contrition. Id. at 582.
AFFIRMED.
2
At oral argument, counsel emphasized that Herring “never” received a copy
of the plea offer. The record does not support this statement. When Herring did
not respond to the first offer by November 2006, the government extended the
deadline to December 7, 2006. Herring explained his reasons for not signing the
plea agreement during the December 6, 2006 status conference – before the
deadline passed.
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