United States v. Karim Hussein Al Nasser, AKA Karim Hussein Al-Nasser, Karim H. Alnasser, Kram Nseelt, Karim H. Alaassar , 479 F.3d 1166 ( 2007 )

Opinion by Judge Kleinfeld; Dissent by Judge Ferguson

KLEINFELD, Circuit Judge.

This case raises issues regarding a vehicle stop and sentencing. We affirm.

FACTS

A Border Patrol agent was patrolling a stretch of highway running north from the Mexican border in Arizona through an Indian reservation, the Tohono O’odham Nation. He spotted a pickup truck around nine at night that he suspected was carrying illegal aliens, and stopped it. It turned out that there were no illegal aliens in the truck, but there was alcohol, which was illegal on that part of the reservation. The Border Patrol agent called a tribal officer to come over and take charge of the violators. The other Border Patrol agent on the stretch of highway came over too.

Meanwhile, a sedan drove toward the area where the pickup truck and two Border Patrol vehicles were stopped. When the Border Patrol agent shined his flashlight at it so he would be seen, despite the darkness and his dark clothing, he saw people hiding in the back seat (he is six feet nine inches tall, and has a good view down toward the floor when a small sedan passes him and he shines his flashlight in). So the Border Patrol agent told the driver to stop the sedan and directed the driver to pull over with hand gestures. After the sedan stopped, the agent took the keys, and determined that this second stop did indeed produce illegal aliens.

While the three law enforcement vehicles, with two light bars flashing, and the two stopped vehicles were still there, A1 Nasser drove up. The tall Border Patrol agent again shined his flashlight so he would be seen and not hit, and again saw people hiding on the floor behind the front seat. He thought this car probably had illegal aliens in it, and said so to his colleague, but chose not to stop it because they already had their hands full. The Border Patrol agents were still busy processing the illegal aliens in the sedan, and the tribal officer was still processing the people with alcohol in the pickup truck.

But A1 Nasser stopped anyway. It is understandable that he did, since there were now five vehicles pulled to the side of the road, two or three with flashing lights, more or less blocking the northbound lane. But no one told him or signaled him to stop. (There is some dispute about this, addressed below.) The Border Patrol agents were just too busy for another earful of illegal aliens and were going to let this one go to avoid the safety problem of having to control so many people.

The Border Patrol agent spoke to A1 Nasser in Spanish, assuming he was Mexican, but it turned out that A1 Nasser was Iraqi and could not understand Spanish. It also turned out that the people hiding on the floor had paid coyotes in Mexico $1,000 and $1,200 respectively to be smuggled into the United States. After Al-Nasser stopped in the middle of the road, one of the Border Patrol agents came over and took his keys, and the illegal aliens in the car were apprehended.

A1 Nasser was convicted of knowingly transporting an illegal alien,¹ but the jury answered “No” to the special interrogatory, “Did defendant transport illegal aliens for the purpose of commercial advantage or private financial gain?” His motion to suppress the fruits of what he claimed was an illegal stop of his car had been denied on the ground that there was no stop.

Analysis

A1 Nasser argues that the evidence from the stop and search of his car (statements made by the illegal aliens) should have been suppressed for lack of reasonable suspicion for the stop, and that his sentence was unreasonable and incorrectly denied him a Guidelines adjustment.

1. The stop.

For the Border Patrol to need any quantum of suspicion to stop A1 Nasser, there would have to be a stop.² The district court, after an evidentiary hearing, concluded that the Border Patrol did not stop A1 Nasser, but rather that he voluntarily stopped of his own accord. We are bound by the district court’s findings of fact unless they are clearly erroneous,³ and we review de novo whether on those facts there was what amounted legally to a stop.⁴

At the evidentiary hearing, the two Border Patrol agents testified that they did nothing to stop A1 Nasser. As for why not, the answer was plain:

A. As he was passing by, I was thinking, “There goes another load of illegal aliens.”

Q. So why not stop him?

A. We already had two vehicles stopped there, one with illegal aliens, and I felt that was more than we could safely control at the time.

The tribal police officer was facing the other way, but thought he heard one of the Border Patrol agents holler toward the vehicle to stop. That testimony established an issue of fact as to whether the Border Patrol agents did or did not tell A1 Nasser to stop.

What was especially interesting in the suppression hearing on this issue was A1 Nasser’s testimony. One would think that if his case was that he was stopped illegally, his attorney would have him testify that he stopped because he was told to stop or signaled to stop. But he did not so testify. He was not asked why he stopped, and he did not say why he stopped.

The district court order denying the motion to suppress acknowledges that the defense raised questions about the credibility of the Border Patrol agents’ testimony. And the order resolved those questions in favor of the agents. The court found that the officers did not bring about A1 Nasser’s decision to stop.

A1 Nasser argues that the district court’s finding was clearly erroneous because it was contrary to the tribal officer’s testimony. That argument is unpersuasive, because (1) the district court had to choose between the Border Patrol agents’ testimony and the tribal officer’s testimony, neither being implausible,⁵ and (2) one would think A1 Nasser, at least, would have testified that he stopped because he was told or signaled to stop, if that were so.

A1 Nasser also argues that the Border Patrol agents could reasonably expect a motorist to stop regardless of whether they intended or commanded him to. That is not to the point. He may well be right that a reasonable motorist would likely stop or go very slowly if one lane was blocked by five stopped vehicles, two with police lights flashing, but that does not mean that the reasonable motorist would think the police were stopping him. More likely, he would want to assure himself that it was safe to go on instead of speeding past all the stopped vehicles into whatever might have brought it about — perhaps a wreck, dead animal, or injured or dead person in the road.

A1 Nasser argues that the police should be treated as having stopped someone if they could reasonably anticipate that someone would stop, but cites no case that so holds. The Fourth Amendment protects people against “seizures,”⁶ which is to say, government action seizing them. We held decades ago, in United States v. Judge, that when a driver stops his vehicle voluntarily and the police officer does not order or request him to stop, there is no stop for Fourth Amendment purposes and thus no requirement of any quantum of suspicion.⁷ Nothing since has changed this proposition.

The Supreme Court held, in United States v. Mendenhall, that “[a] person is seized only when, by means of physical force or a show of authority, his freedom of movement is restrained.”⁸ The Court held, in Florida v. Bostick, that even though a passenger on a bus about to depart would not feel free to leave when the police came aboard, that was because he wanted to take the bus, and “says nothing about whether or not the police conduct at issue was coercive.”⁹ We held, in United States v. Kerr, that blocking a vehicle that is backing out of a driveway is a stop,¹⁰ but we held, in United States v. Kim, that approaching the driver of an already voluntarily stopped vehicle is not, even where the police partially blocked the car’s path of possible movement.¹¹ And in United States v. Chan-Jimenez, when a driver followed by a suspicious policeman pulled over and stopped, we did not treat the driver’s voluntary stop as requiring reasonable suspicion.¹² Rather, we concluded that the stop was the policeman’s keeping the driver’s license and registration and keeping his hand on his gun.¹³ We used the active voice regarding the policeman’s conduct, holding not that a stop occurred when a reasonable driver would feel that he ought to stop, but rather “when a law enforcement officer, by means of physical force or a show of authority, in some way restrains the liberty of a citizen.”¹⁴ That is consistent with Bostick, which focuses on whether the police conduct was coercive.¹⁵

The Border Patrol officers did not restrain or try to restrain A1 Nasser’s liberty. He stopped despite their decision to let him pass because their hands were full. Like the bus rider in Bostick, A1 Nasser’s freedom of movement may have been restrained, but was not restrained by police efforts to restrain it. The district court correctly denied the motion to suppress because there was no stop for purposes of Fourth Amendment analysis.

II. Sentencing.

We review the district court’s interpretation of the Sentencing Guidelines de novo and its factual findings for clear error.¹⁶ And we review the ultimate sentence for “reasonableness.”¹⁷

A1 Nasser sought a three level downward adjustment in his guideline calculation, because the jury had answered “No” to the interrogatory asking whether he transported the illegal aliens in his car “for the purpose of commercial advantage or private financial gain.” The district court denied him the adjustment, despite the absence of evidence that he received any money, because the evidence showed that the aliens had paid $1,000 and $1,200 respectively to a coyote for the transportation. The court found that “this was not an unwise, generous picking up of hitchhikers[,]” that A1 Nasser “knew it was an organized activity involving commercial— commercial is the wrong word — financial gain[,]” and that A1 Nasser’s account of how he happened to be there with the illegal aliens was “not worthy of belief.”

The Guidelines provide for a three level downward adjustment if the “offense was committed other than for profit, or the offense involved the ... transporting only of the defendant’s spouse or child....”¹⁸ The relevant Application Note says that the nonprofit phrase in the Guideline means “there was no payment or expectation of payment for the smuggling, transporting or harboring....”¹⁹ The Guideline formerly provided the adjustment where “the defendant committed the offense other than for profit,” but it was amended in 1997 to say “the offense was committed other than for profit” in order “to narrow somewhat the class of cases that would qualify for the reduced offense level.”²⁰

The offense was committed October 5, 2003, long after the narrower guideline went into effect. Under the 2003 guidelines applicable at sentencing, it did not matter whether A1 Nasser got paid, or even expected payment, because the court did not find that the crime was committed other than for profit. A1 Nasser was part of a scheme to transport the aliens for money, whether he personally received any of the money or not. An “offense was committed other than for profit” only if the offense itself was committed other than for profit, regardless of whether the particular defendant got or expected to get any of the money.

The district court took account of United, States v. Booker,²¹ and although we had not yet issued our en banc decision in Ameline²² the district court anticipated it by expressly considering the reasonableness of the sentence in light of all the factors in 18 U.S.C. § 3553 and expressly acknowledging that the court was not bound by the guidelines. A1 Nasser argues that the fifteen month sentence was unreasonable because he was going to remain law abiding subsequently and the judge did not consider the immigration consequences. But the judge expressly did consider the immigration consequences and decided not to reduce the sentence further, despite whatever those consequences might be. There is no basis for characterizing the judge’s exercise of sentencing discretion, or the sentence itself, as unreasonably harsh.

AFFIRMED.

1 . 8 U.S.C. § 1324(a)(l)(A)(ii) and 1324(a)(l)(B)(i).

2 . See Terry v. Ohio, 392 U.S. 1, 16-17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Judge, 501 F.2d 1348, 1349 (9th Cir.1974).

3 . See United States v. Murillo, 255 F.3d 1169, 1174 (9th Cir.2001); United States v. Kerr, 817 F.2d 1384 1386 (9th Cir.1987).

4 . See United States v. Stephens, 206 F.3d 914, 917 (9th Cir.2000); United States v. Kim, 25 F.3d 1426, 1430 (9th Cir.1994).

5 . See United States v. Elliott, 322 F.3d 710, 714 (9th Cir.2003) (“Where there are two permissible views of the evidence, the factfin-der’s choice between them cannot be clearly erroneous.”).

6 . See Terry v. Ohio, 392 U.S. 1, 16-17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

7 . United States v. Judge, 501 F.2d 1348, 1349 (9th Cir.1974).

8 . United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).

9 . Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

10 . United States v. Kerr, 817 F.2d 1384 1386-87 (9th Cir.1987).

11 . United States v. Kim, 25 F.3d 1426, 1428, 1430-31 (9th Cir.1994).

12 . See United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997).

13 . See id. ("We find that Chan-Jimenez was seized within the meaning of the Fourth Amendment when Officer Price obtained and failed to return his driver’s license and registration, and proceeded with an investigation.”) (emphasis added).

14 . Id. (citing Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)).

15 . Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).

16 . United States v. Kimbrew, 406 F.3d 1149, 1151-52 (9th Cir.2005).

17 . United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

18 . United States Sentencing Guideline § 2L1.1(b)(1) provides: "If (A) the offense was committed other than for profit, or the offense involved the smuggling, transporting, or harboring only of the defendant’s spouse or child (or both the defendant's spouse and child), and (B) the base offense level is determined under subsection (a)(2), decrease by 3 levels.” U.S.S.G. § 2L1.1(b)(1) (2003).

19 . Application Note 1 of § 2L1.1(b)(1) provides, in pertinent part: "For purposes of this guideline — 'The offense was committed other than for profit’ means that there was no payment or expectation of payment for the smuggling, transporting, or harboring of any of the unlawful aliens.” U.S.S.G. § 2L1.1(b)(1), Application Note 1 (2003).

20 . United States Sentencing Guideline Amendment 561 provides: "Section 2L1.1 is repromulgated with the following changes:

Section 2L1.1(b)(1)(A) is amended by deleting 'the defendant committed the offense' and inserting in lieu thereof 'the offense was committed’.

The Commentary to § 2L1.1 captioned "Application Notes” is amended in Note 1 by deleting:

" 'The defendant committed the offense other than for profit’ means that there was no expectation of payment for the smuggling transportation or harboring of any of the unlawful aliens. The 'number of unlawful aliens smuggled transported or harbored' does not include the defendant.”

and inserting in lieu thereof:

" 'The offense was committed other than for profit’ means that there was no expectation of payment for the smuggling transportation or harboring of any of the unlawful aliens.

'Number of unlawful aliens smuggled transported or harbored’ does not include the defendant.”

Section 5K2.0 is amended in the third paragraph by deleting ‘immigration violations’ and inserting in lieu thereof 'other guidelines’; and by deleting ‘for an immigration violation' and inserting in lieu thereof 'under one of these other guidelines'.

Reason for Amendment: This amendment implements section 203 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. 104-208, 110 Stat. 3009, which directs the Commission to amend the guidelines for offenses related to smuggling, transporting, or harboring illegal aliens. Pursuant to the emergency amendment authority of that Act, this amendment previously was promulgated as a temporary measure effective May 1, 1997. This version of the amendment changes § 2Ll.l(b)(l)(A)(pertaining to a reduction for non-profit offenses) to narrow somewhat the class of cases that would qualify for the reduced offense level under that provision. This amendment also makes a conforming change to § 5K2.0.

21 . United States v. Booker, 543 U.S. 220, 125 S.Ct 738, 160 L.Ed.2d 621 (2005).

22 . United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).