United States v. Juan Aparicio-Lopez

FILED
NOT FOR PUBLICATION APR 05 2011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. 09-50418
Plaintiff - Appellee, D.C. No. 2:08-cr-01281-AHM-1
v.
MEMORANDUM *
JUAN APARICIO-LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted November 5, 2010
Pasadena, California
Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT,
District Judge.**
1. The district court properly denied the motion to suppress filed by
Defendant-Appellant Juan Aparicio-Lopez (Aparicio-Lopez). The Border Patrol
Agent had reasonable suspicion for the initial traffic stop. The agent observed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
Aparicio-Lopez’s evasive slowing behavior, extremely nervous appearance, his
vehicle’s type and Baja license plates, and the time he crossed the checkpoint.
See United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (listing
factors to consider in determining whether a vehicle stop was justified by
reasonable suspicion).
The initial traffic stop was not unlawfully extended by the agent’s
questioning of Aparicio-Lopez regarding his business in the United States.
The questioning did not unreasonably prolong the duration of the detention, and
therefore required no additional Fourth Amendment justification. See United
States v. Mendez, 476 F.3d 1077, 1080-81 (9th Cir. 2007) (stating that because
“officers’ questioning did not prolong the stop, we are compelled to hold that the
expanded questioning need not have been supported by separate reasonable
suspicion”); see also United States v. Turvin, 517 F.3d 1097, 1099-1100
(9th Cir. 2008) (same).
The waiting period necessitated by the agent’s call for the K-9 unit did not
transform the investigatory detention into a functional arrest because the agents
“used no threats of force, unnecessary delays, exaggerated displays of authority or
other coercive tactics.” United States v. Torres-Sanchez, 83 F.3d 1123, 1129
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(9th Cir. 1996), as amended (citations omitted). Moreover, Aparicio-Lopez’s
consent to the canine sniff search justified the additional detention while he and the
agents waited for the K-9 unit to arrive. See United States v. Brignoni-Ponce,
422 U.S. 873, 882-83 (1975) (noting that further detention or search unjustified by
border patrol agents’ reason for initial stop must be based on “consent or probable
cause”) (emphasis added).
Aparicio-Lopez’s arguments regarding the validity and scope of his consent
were waived because he did not advance them in his motion to suppress before the
district court. See United States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004).
2. The district court did not clearly err in denying Aparicio-Lopez’s
request for a safety-valve reduction because, “not later than the time of the
sentencing hearing, [Aparicio-Lopez] ha[d] [not] truthfully provided to the
Government all information and evidence [he] ha[d] concerning the offense . . .”
18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5).
United States v. Shrestha, 86 F.3d 935 (9th Cir. 1996), does not compel a
contrary conclusion. Shrestha held that a defendant’s “perjury at trial should [not]
automatically defeat a claim for [safety valve relief][,]” id. at 939-40, and
determined that, although the defendant had perjured himself in his prior
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testimony, he was entitled to a safety-valve reduction because, before sentencing,
he “appear[ed] to have timely provided the Government with all the information at
his disposal concerning the offense for which he was convicted.” Id. at 939. In
this case, however, the district court found that Aparicio-Lopez appeared to have
proffered incomplete, inconsistent, and untrue information to the government
before sentencing.
AFFIRMED.
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