United States v. Jesus Soto-Valencia

FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30350
Plaintiff - Appellee, D.C. No. 1:10-cr-30058-PA-4
v.
MEMORANDUM*
JESUS HUMBERTO SOTO-VALENCIA,
AKA Jesus Soto-Valencia,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted November 5, 2012
Portland, Oregon
Before: ALARCÓN, McKEOWN, and NGUYEN, Circuit Judges.
Jesus Soto-Valencia appeals his conviction by conditional guilty plea and
sentence for conspiracy to manufacture 1000 or more marijuana plants in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii) and § 846. He contends that the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court erred by denying his motion to suppress and finding him ineligible for safety-
valve relief. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Soto-Valencia’s voluntary decision to stop his vehicle and converse with
Officer Thomas for the first 30 seconds or so of the encounter did not implicate the
Fourth Amendment. See United States v. Al Nasser, 555 F.3d 722, 726 (9th Cir.
2009). Thereafter, in light of the totality of the circumstances, Thomas had
reasonable suspicion to detain Soto-Valencia to check his identification. See
United States v. Christian, 356 F.3d 1103, 1106 (9th Cir. 2004). Thomas
encountered Soto-Valencia driving miles past a road closure sign in an area of
suspected marijuana grow operations, was told an implausible story about a
camping trip, observed the vehicle occupants’ scared demeanor and inappropriately
heavy clothing, and knew from an intelligence briefing that drug trafficking
organizations were bringing groups of Hispanic males into the area to staff the
grow operations. Cf., e.g., United States v. Baron, 94 F.3d 1312, 1319 (9th Cir.
1996), overruled on other grounds by United States v. Heredia, 483 F.3d 913 (9th
Cir. 2007) (en banc).
Upon learning from Soto-Valencia’s identification card that he was likely
connected to an individual who had been arrested earlier that day in the suspected
grow area, Thomas had an additional ground to suspect that Soto-Valencia was
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involved in the marijuana operation. It is reasonable to conduct further
investigations “based on facts learned and observations made” during the course of
an otherwise lawful stop. United States v. Turvin, 517 F.3d 1097, 1102 (9th Cir.
2008).
That Soto-Valencia’s vehicle was not included on Thomas’s “probable cause
sheets” is of no moment. There were only two vehicles listed on the sheets, and
although officers had already stopped both and arrested their occupants, Thomas
suspected from the intelligence briefing that there were many persons in various
locations throughout the national forest who were growing marijuana. Likewise,
Thomas’s observation that Soto-Valencia and his companions did not “stink of
weed” did not diminish the reasonableness of his suspicion. Soto-Valencia was
heading into the suspected marijuana grow area and had no obvious reason to
transport marijuana in that direction.
The stop’s scope and duration were also reasonable. Soto-Valencia and his
companions remained in their car until their arrest, and Thomas did no more than
check Soto-Valencia’s identification and ask a few questions relevant to the
investigation. The investigatory stop lasted no more than 23 minutes—a
reasonable time given the language barrier, the other vehicle that Thomas was
already dealing with, and the fact that the Forest Service officers with whom
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Thomas needed to communicate were already busy interrogating and processing
the arrestees from earlier in the day. See United States v. Sharpe, 470 U.S. 675,
685 (1985).
Soto-Valencia also challenges the district court’s finding at sentencing that
he did not qualify for safety-valve relief because he was an organizer, leader,
manager, or supervisor of others in the criminal activity. See 18 U.S.C. §
3553(f)(4); U.S. Sentencing Guidelines Manual § 5C1.2(a)(4). Soto-Valencia
helped recruit persons to work at the grow sites, purchased supplies for them,
transported them to work, and expected to earn a share of the overall marijuana
yield rather than—as did the workers at the grow sites—a daily payment. In light
of this evidence, the district court did not clearly err in finding that Soto-Valencia
was, to some extent, responsible for organizing others to carry out the grow
operation. Consequently, the court did not abuse its discretion in ruling Soto-
Valencia ineligible for safety-valve relief. See United States v. Riley, 335 F.3d
919, 929 (9th Cir. 2003) (quoting United States v. Harper, 33 F.3d 1143, 1151 (9th
Cir. 1994)).
The record contradicts Soto-Valencia’s contention that the district court
believed it would be unjust to withhold application of the safety valve in his case.
Even if he were correct, however, the court had no discretion to sentence him
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below the mandatory minimum once it found that Soto-Valencia failed to meet one
of the requirements for safety-valve eligibility. See United States v.
Cardenas-Juarez, 469 F.3d 1331, 1334 (9th Cir. 2006); see also United States v.
Biao Huang, 687 F.3d 1197, 1203 (9th Cir. 2012).
Soto-Valencia’s remaining arguments relate to the purported tension
between 18 U.S.C. § 3553(a)—which requires a district court to “impose a
sentence sufficient, but not greater than necessary” and to consider various
case-specific factors, including “the need to avoid unwarranted sentence
disparities” among similarly situated defendants—and § 3553(f) insofar as it
establishes fixed criteria for avoiding the application of a statutory minimum
sentence. We have previously considered and rejected this line of attack. See
United States v. Wipf, 620 F.3d 1168, 1170–71 (9th Cir. 2010). Moreover, the
district court did consider the § 3553(a) factors and concluded that the ten-year
sentence would be appropriate even without the mandatory minimum.
AFFIRMED.
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