United States v. Lester Pinex, III

FILED
NOT FOR PUBLICATION
DEC 19 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30050
Plaintiff-Appellee, D.C. No.
1:14-cr-00088-SPW-1
v.
LESTER PINEX III, AKA Lester Johnson, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted October 2, 2017
Portland, Oregon
Before: PAEZ and BEA, Circuit Judges, and LAMBERTH,** District Judge.
Lester Pinex appeals the district court’s denial of his motion to suppress
evidence and the district court’s application of the four-level sentencing
enhancement under U.S.S.G § 2K2.1(b)(6). We affirm in part and reverse in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
1. Pinex moved to suppress the seizure of heroin, alleging that the traffic stop
was prolonged without reasonable suspicion of criminal activity in violation of the
Fourth Amendment. We review “de novo a district court’s legal conclusions
regarding the denial of a motion to suppress.” United States v. I.E.V., 705 F.3d
430, 434 (9th Cir. 2012).
In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Supreme Court
held that “a police stop exceeding the time needed to handle the matter for which
the stop was made violates the Constitution’s shield against unreasonable
seizures.” Id. at 1612. A prolonged stop is unconstitutional if it both exceeds the
time needed for the initial purpose of the stop and there is no independent
reasonable suspicion to allow the police to extend the length of the stop. Id. In
other words, “[a]uthority for the seizure . . . ends . . . when tasks tied to the traffic
infraction are—or reasonably should have been—completed.” United States v.
Evans, 786 F.3d 779, 786 (9th Cir. 2015). If during a traffic stop, “new grounds
for suspicion of criminal activity continue[] to unfold,” the period of the detention
can be constitutionally extended. United States v. Mayo, 394 F.3d 1271, 1275 (9th
Cir. 2005) (internal quotation marks omitted). In this case, given the totality of the
circumstances, as events unfolded the police officers had reasonable suspicion to
believe that criminal activity was afoot.
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Pinex was pulled over for speeding, which the parties do not dispute was a
valid traffic stop. The question is whether that stop—which lasted nearly two
hours—was prolonged without reasonable suspicion that Pinex was involved in
criminal activity. See id. At the beginning of the stop, Pinex provided the officers
with a rental car agreement, that showed the car he was driving had been rented to
a third party, who was not present. The stop took place on I-94, which law
enforcement officers consider a “drug corridor.”
Additionally, Pinex gave the officers a false name, social security number,
and date of birth, none of which returned a positive identification of Pinex when
one of the officers tried to run the information through available databases. The
fact that Pinex’s identity could not be confirmed and that the rental car had been
rented to another person prompted the officers to question separately Pinex and his
passenger Deangelo Tyler. After speaking with Pinex and Tyler, the officers
noticed inconsistencies in the information they provided. In subsequent
conversations with the rental car company the officers learned that Pinex had lied
about the whereabouts of the third party named in the rental agreement, and the
company authorized a search of the car and requested that it be impounded.
Although the officers called for a tow truck, given its location there was delay in its
arrival at the scene. As these facts evolved, the officers reasonably suspected that
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Pinex was involved in drug trafficking. This independent basis for reasonable
suspicion amply supported the officers decision to prolong the stop and call for a
drug dog. Given the totality of the circumstances, the prolonged traffic stop was
supported by reasonable suspicion that criminal activity was afoot. We therefore
affirm the district court’s denial of Pinex’s motion to suppress evidence.
2. Pinex also challenges the application of the four-level sentencing
enhancement under U.S.S.C. § 2K2.1(b)(6). We review “the district court’s
interpretation of the Sentencing Guidelines de novo, the district court’s application
of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the
district court’s factual findings for clear error.” United States v. Cantrell, 433 F.3d
1269, 1279 (9th Cir. 2006) (quoting United States v. Kimbrew, 406 F.3d 1149,
1151 (9th Cir. 2005)).
In relevant part, the four-level enhancement applies when the defendant
“used or possessed any firearm or ammunition in connection with another felony
offense.” U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(b)(6)(B) (2016).
Application Note 14(A) explains that “[s]ubsection[ ] (b)(6)(B) . . . [applies] if the
firearm or ammunition facilitated, or had the potential of facilitating, another
felony offense or another offense, respectively.” This contrasts with the directive
in Application Note 14(B) that subsection (b)(6)(B) applies “in the case of a drug
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trafficking offense in which a firearm is found in close proximity to drugs, drug-
manufacturing materials, or drug paraphernalia.” As the note explains, “[i]n these
cases, application of subsections (b)(6)(B) . . . is warranted because the presence of
the firearm has the potential of facilitating another felony offense or another
offense, respectively.”
The district court concluded that the gun “played an emboldening role in
[Pinex’s] criminal possession of those drugs,” and therefore applied the
enhancement. In doing so, the district court noted that although the gun and drugs
were in separate containers, they were in close proximity and that Pinex spoke of
the drugs and gun at the same time, thereby suggesting that in his mind they were
related. Because the other felony offense here was not a drug trafficking crime, we
look to Application Note 14(A) for guidance.
When the other felony offense is not a drug trafficking crime, we have held
that accessibility is a central factor in determining whether the section 2K2.1(b)(6)
enhancement should apply. United States v. Routon, 25 F.3d 815, 819 (9th Cir.
1994). In United States v. Routon, which involved a felony possession of a stolen
vehicle, we acknowledged that the enhancement may apply if possession of the
firearm “had some potential emboldening role in[] a defendant’s felonious
conduct.” Id. This emboldening role was in turn sufficient to permit a finding of
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“facilitation,” whereas mere possession was not. Key to the determination that the
gun emboldened Routon’s conduct was the fact that it was easily accessible.
“Routon’s apparent efforts to maintain the accessibility of his gun whenever he
used his car permit the inference that the gun emboldened him to continue his
illegal conduct.” Id. (emphasis added). Although the other criminal offense in
Routon was possession of a stolen vehicle rather than possession of drugs, the
same principles apply, as Application Note 14(A) provides guidance for each.
Here, the gun was not accessible to Pinex. Indeed, it was in a locked
suitcase in the trunk of his car. He could not gain access to the gun without
significant effort given its location in the trunk. This lack of accessibility contrasts
with Routon, where the gun was in the front of the car between the driver and
passenger seats. The fact that the gun and the drugs were both in the trunk does
not support the district court’s finding that the gun emboldened Pinex’s possession
of the drugs. The district court erred by focusing on proximity rather than
accessibility.
For the above reasons the district court’s denial of Pinex’s motion to
suppress evidence is affirmed. And the district court’s application of U.S.S.G. §
2K2.1(b)(6) four- level sentencing enhancement is reversed and the case is
remanded for resentencing.
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AFFIRMED in part; REVERSED in part and REMANDED for
resentencing.
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