United States v. Lopez-Merida

FILED
United States Court of Appeals
Tenth Circuit
March 12, 2012
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 10-2244
v. (D. New Mexico)
JULIO LOPEZ-MERIDA, (D.C. No. 1:08-CR-01841-JAP-2)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, and HOLMES, Circuit Judges, and EAGAN **, District Judge.
Defendant Julio Lopez-Merida was convicted by a jury in the United States
District Court for the District of New Mexico of conspiracy and possession with
intent to distribute more than 100 kilograms of marijuana. The marijuana was
found in a tractor-trailer stopped on the highway by a state police officer who
observed what appeared to be an equipment problem. On appeal Defendant
argues (1) that the district court erred in refusing to suppress his statements and
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
Honorable Claire V. Eagan, Chief Judge, United States District Court,
Northern District of Oklahoma, sitting by designation.
the marijuana, and (2) that his sentence was improper because the court
erroneously found that the seized marijuana had a net weight exceeding 1000
kilograms.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. On the
suppression issue, the only question we need address on the merits is the legality
of Defendant’s detention, and we reject Defendant’s argument. On the sentencing
issue, we hold that the district court’s drug-quantity finding was not clearly
erroneous.
I. BACKGROUND
On August 2, 2008, Defendant was driving a tractor-trailer eastbound on
Interstate 40 west of Albuquerque, New Mexico. He was accompanied by a
co-driver, Gil Manfredo Ruiz. After the vehicle passed the patrol car of New
Mexico state police officer Arcenio Chavez, Chavez pulled it over because there
appeared to be a loose air-brake hose between the tractor and the trailer that could
be frayed on the tractor deck.
Defendant exited the tractor and met Chavez near the cab. Chavez told
Defendant why he had stopped the vehicle and showed him the loose connection.
He then asked Defendant to retrieve his log book and shipping papers, and both
men walked to the officer’s car.
When asked where he was coming from and what he was hauling,
Defendant told Chavez that he was hauling watermelons from New York. The
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bill of lading, however, showed that the cargo was cantaloupes headed to New
York; and the log book indicated that the destination was Columbus, Ohio. When
asked about the log book, Defendant replied, “Yeah, going from Columbus,
yeah,” R., Vol. 3 pt. 1 at 47, and, “Yeah, New York, but route is Columbus,” id.Chavez observed that Defendant’s hands were shaking and he appeared nervous.
Chavez further noted that the log book stated that Defendant had been off
duty from July 27 to August 1, 2008, but that the bill of lading indicated that the
cantaloupes had been picked up on July 30. Chavez asked Defendant where he
had picked up the load. Defendant hesitated before replying, “Other driver,” and
“Modesto, California, I don’t know.” Id. at 46.
The signature of the person who picked up the load was illegible on the bill
of lading, but it was different from Defendant’s signature. Defendant said the
signature belonged to the other driver. When asked on what day he had picked up
the load, Defendant answered, “I don’t remember.” Id. Defendant told the
officer that he spoke only a little English.
Ten minutes after the initial stop Chavez contacted the New Mexico Motor
Transportation Division (MTD) for assistance. He then spoke with co-driver
Ruiz. Ruiz’s log book also said that he had been off duty from July 27 to August
1 and that his destination was Ohio. Ruiz confirmed that Columbus, Ohio, was
his destination, and said that they had picked up the tractor-trailer the day before
in “L.A.” and in “Verno,” where it had been parked on the street. Id. at 48. He
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said that the owner of the vehicle was in California. At Chavez’s request, Ruiz
retrieved the trailer key from the passenger-side door and gave it to Chavez, who
handed it to Defendant.
MTD Agent Joshua Perea arrived at the scene about 20 minutes after the
stop. During his exterior inspection of the tractor-trailer, Perea observed a seal
on the dog door (a small door used for ventilation). He thought this “very
unusual,” id. at 96, because some shippers require the door to be open and some
drivers use it to access and look inside the trailer. Perea also noted that the
temperature gauge registered 22 degrees in the trailer, whereas the bill of lading
said that the temperature should be kept between 33 and 36. Meanwhile, Chavez
issued Defendant a warning citation for the loose hose. He asked Defendant if he
was sick because it appeared that he was about to vomit.
Perea next approached Ruiz and examined his log book. He noticed that it
went back only six days, rather than the required seven, and that it showed that
Ruiz had been off duty on July 30, the same day that the bill of lading said that
the load had been picked up. When Perea asked Ruiz about his destination, he
said that they were headed to New York, contradicting his statement to Chavez
that they were going to Columbus, Ohio.
Perea then met Defendant behind the tractor-trailer. He examined
Defendant’s log book, which also did not cover the required seven days. Perea
asked Defendant whether he had picked up the load, and he responded that he did
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not speak much English. Perea therefore tested his English proficiency. See 49
C.F.R. § 391.11(b)(2) (requiring drivers of commercial motor vehicles to be
sufficiently proficient in English). Defendant told Perea that he had filled out the
log book himself, but he could only scribble something illegible when Perea
requested him to write down where he had picked up the load, and Perea observed
that the destination of Columbus was printed suspiciously clearly in the log book.
Defendant failed the proficiency test, so Perea placed him out-of-service until he
passed a proficiency test. About three minutes later, Perea placed Ruiz out of
service for 10 hours because of his incomplete log book. The stop had occurred
38 minutes earlier.
Perea returned to his vehicle to consult with Chavez, review the log books
and the bill of lading, and complete his inspection report. The officers discussed
the inconsistencies and peculiarities in the documents and the drivers’ accounts,
the nervousness of the drivers, and the strong smell of air freshener in the cab of
the truck. This took about 12 minutes.
Perea then instructed Defendant to open the trailer for a safety inspection of
the cargo (the first search). Perea entered, soon followed by Chavez. Perea
observed that the trailer’s interior was dirty, the load smelled rotten, some cartons
of cantaloupe “had shifted and were leaning on the sidewall,” R., Vol. 3 pt. 1 at
96, and an airbag was lying on top of the cartons where it “served no safety
purpose whatsoever.” Id. From atop a ladder he saw that some cartons in the
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first row were secured by banding, but that those in the second row had fallen
over because they were not properly secured. He also saw shrink-wrapped
packages behind the second row. Knowing that shrink wrap was inconsistent with
produce packaging but consistent with drug packaging, he cut open a package,
discovering what looked and smelled like marijuana.
Perea finished his inspection report, issued citations, and returned all
paperwork to the drivers. Defendant and Ruiz were advised that they were free to
leave. But because both men had been placed out of service, Perea explained that
the tractor-trailer would need to be escorted to the next truck stop, about ten miles
away, where they were to stay for ten hours.
Chavez then told Defendant and Ruiz that he had some additional
questions. He asked them whether they were responsible for what was in the
truck and whether they were carrying contraband. At Chavez’s request, both men
signed a form in Spanish consenting to a search of the trailer.
Chavez got his drug-detection dog from his vehicle, led it around the
exterior of the tractor-trailer, and took the dog inside (the second search), where it
alerted to the presence of drugs. Chavez saw the shrink-wrapped packages,
which he believed to be marijuana. He arrested Defendant and Ruiz for
possession of marijuana about 94 minutes after the traffic stop. Chavez recovered
101 packages of marijuana from the trailer.
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After being indicted, Defendant unsuccessfully moved to suppress the
evidence seized from the trailer and statements made to the officers. He
nevertheless went to trial and was convicted on one count of possession with
intent to distribute 100 kilograms or more of marijuana, see 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(vii), and one count of conspiracy to commit the same
offense, see id. § 846. At sentencing, the district court calculated Defendant’s
offense level based on its finding that the net weight of the marijuana in the
trailer was 1,013.32 kilograms. See USSG § 2D1.1(c)(4). The court calculated a
guidelines sentencing range of 151 to 188 months’ imprisonment, but imposed
concurrent sentences of 120 months. See 21 U.S.C. § 841(a)(1), (b)(1)(A).
II. DISCUSSION
A. Fourth Amendment Issues
Defendant devotes most of his brief on appeal to issues related to his
motion to suppress. We need not address two of them. First, he challenges the
district court’s ruling denying him standing to argue certain matters; but we can
assume that he has standing, because he loses on the merits. Second, he argues
that the consent to search the trailer was invalid; but we can uphold the search on
a ground other than consent, thereby mooting the consent issue. The four issues
we will address (although three only briefly, because they have not been properly
presented) are the validity of the initial stop, the duration of the detention of
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Defendant and Ruiz, the validity of the first search, and the validity of the second
search.
1. Initial Stop
Defendant claims that the traffic stop was invalid at its inception. But he
failed to raise this argument in district court. The closest he came was in a
sentence in his district-court reply brief stating that it was “unclear whether or not
the alleged ‘chaffing’ [of the air-brake hose] actually constitutes a violation of the
statute; if it does not, then arguably the entire stop could be deemed [to] be
invalid.” R., Vol. 1 at 89–90 (footnote omitted). This was inadequate to present
the issue fairly to the district court for resolution, particularly when he failed to
make this argument during the suppression hearing or in the posthearing briefing.
We therefore hold that the issue has been waived. See United States v. Burke,
633 F.3d 984, 987 (10th Cir. 2011) (failure to include an argument in a motion to
suppress waives that argument on appeal). Defendant has not suggested any
ground for excusing the waiver.
2. Duration of the Stop
Next, Defendant argues that the officers’ questioning was unrelated to the
loose brake hose and impermissibly prolonged the detention, permitting the
officers to acquire incriminating evidence. We reject the argument. We agree
with Defendant that in general a traffic stop is reasonable only insofar as “it is (1)
justified at its inception and (2) reasonably related in scope to the circumstances
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which justified the interference in the first place.” United States v. Karam, 496
F.3d 1157, 1161 (10th Cir. 2007) (internal quotation marks omitted). But during
a traffic stop an officer can request the documents concerning the travel—such as
driver’s license, registration, rental contract, or, as here, the driver’s log and
shipping documents. See id.; United States v. Rosborough, 366 F.3d 1145, 1148
(10th Cir. 2004). The officer can also inquire about the trip being taken, see
United States v. Vazquez, 555 F.3d 923, 928–29 (10th Cir. 2009), and can ask
questions on any subject so long as the questioning does not prolong the detention
beyond what is otherwise necessary to perform such routine tasks as computer
checks and preparing reports and citations, see Karam, 496 F.3d at 1161.
Moreover, if information obtained by such inquiries and other observations during
the stop create reasonable suspicion to believe that a crime has been or is being
committed, the officer can take reasonable steps to investigate. See Vazquez, 555
F.3d at 929.
Under these standards the detention of Defendant was constitutionally
permissible. We need not repeat our earlier account of what happened. Suffice it
to say that the information properly obtained by Chavez and Perea soon created
reasonable suspicion concerning the legitimacy of Defendant’s trip, and the
investigation conducted by those officers was wholly reasonable.
3. First Trailer Search
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Defendant contends that “Officer Perea’s search exceeded his authority
under New Mexico law.” Aplt. Br. at 21. He advances two arguments. One is
that the search by Perea was improper because the initial stop was invalid. We
have already ruled, however, that he cannot challenge the initial stop.
Defendant’s second argument is that an MTD officer cannot conduct a search or
inspection except at a port of entry. But the authority on which Defendant relies,
State v. Clark, 816 P.2d 1122, 1123–24 (N.M. Ct. App. 1991), holds only that a
random inspection, not based on reasonable suspicion, is improper if not at a port
of entry. The district court correctly distinguished Clark, noting that reasonable
suspicion supported inspection in this case. Defendant’s brief on appeal does not
address the reasoning of the district court and therefore the issue has been
waived. See United States v. Pursley, 577 F.3d 1204, 1228 (10th Cir. 2009)
(“applying the principle that arguments inadequately briefed in the opening brief
are waived” (brackets and internal quotation marks omitted)).
4. Second Trailer Search
As for the second search, it was clearly supported by probable cause based
on Perea’s observation of marijuana during the first search. See United States v.
Vasquez-Castillo, 258 F.3d 1207, 1213 (10th Cir. 2001). Hence, it is irrelevant
whether Defendant’s consent to the second search was valid. We recognize that
the issue of probable cause was not squarely joined in the briefing or oral
argument on appeal. But the district court’s opinion on the suppression motion
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said that there was probable cause, and the government’s answer brief on appeal
noted that Defendant’s opening brief had not challenged the court’s finding. We
therefore can uphold the second search on this ground.
B. Sentence
Defendant argues that the district court erred in calculating his guidelines
offense level because it had insufficient evidence that he possessed more than
1000 kilograms of marijuana. The court relied on the estimates of deputy sheriff
Danny Joseph, who assisted in weighing it. He testified that the gross weight of
the packages of marijuana was 1,066.65 kilograms and that the federal Drug
Enforcement Agency generally subtracts 5% from the gross weight to calculate
net weight because that is the average weight of packaging. He stated that the
packaging in this case was “fairly standard” among the thousands of bundles of
packaged marijuana that he had been exposed to, R., Vol. 3 pt. 4 at 698, although
he conceded that these packages on average weighed about half what typical
bundles weigh. Subtracting 5% from the gross weight in this case resulted in an
estimated net weight of 1013.32 kilograms.
We review the district court’s finding regarding weight for clear error. See
United States v. Middagh, 594 F.3d 1291, 1295 (10th Cir. 2010). “The facts
necessary to calculate the guidelines sentencing range must be proved by a
preponderance of the evidence.” United States v. Flonnory, 630 F.3d 1280,
1285–86 (10th Cir. 2011). Clear error exists only if a finding is “without factual
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support in the record” or we are “left with a definite and firm conviction that a
mistake has been made.” United States v. Maestas, 642 F.3d 1315, 1319 (10th
Cir. 2011) (internal quotation marks omitted).
Defendant criticizes Joseph’s estimate as vague and nonspecific, pointing
out that he used several qualifiers, such as “typically” and “on average,” when he
discussed calculating the marijuana’s net weight. Aplt. Br. at 25 (brackets and
internal quotation marks omitted). Defendant’s argument has some merit. But it
is not clearly erroneous for a district court to base its drug-quantity calculation on
a law-enforcement officer’s estimate of net weight when the estimate is based on
the officer’s relevant professional experience. See United States v. Clonts, 966
F.2d 1366, 1370–71 (10th Cir. 1992).
Defendant argues more specifically that because the average bundle here
weighed half as much as a typical bundle, the packaging must have constituted a
disproportionate amount of the weight. Perhaps. But Defendant offered no
evidence that the lesser weight per bundle in this case resulted from the individual
packages being less full than normal. On the contrary, Joseph testified that the
packaging was “fairly standard.” R., Vol. 3 pt. 4 at 698. Likewise, Defendant
points out that the thickness of the packaging can, according to Joseph, range
from one-quarter to one-half inch in thickness, so some packaging presumably
can be twice as heavy as other packaging of the same quantity of marijuana. But
he presented no evidence that the packaging here was on the thick side. In short,
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although another reasonable judge could have made a different finding, the
finding by the district court is not close to being clearly erroneous.
III. CONCLUSION
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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