91 F. 3d 156 - United States v. Flores-Campa

MEMORANDUM*

Rodolfo Flores-Campa appeals his five-count conviction and sentence on various marijuana trafficking and weapons charges.1 On appeal, Flores-Campa claims that the police lacked "reasonable suspicion" to conduct an investigatory stop and that all of the evidence derived from the stop should have been suppressed. He also claims that evidence relating to an outstanding charge of unlawful transportation of marijuana was erroneously admitted at trial. Finally, Flores-Campa contends that his sentence should have been adjusted downward because of his minor role in the drug operation and his acceptance of responsibility and because the amount of marijuana properly attributable to him was far less than the total amount seized. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Whether there was reasonable, founded suspicion to justify an investigatory stop is a mixed question of law and fact which we review de novo. See Ornelas v. United States, 116 S.Ct. 1657, 1662 (1996); United States v. Carrillo, 902 F.2d 1405, 1410-11 (9th Cir.1990). We review the district court's factual findings for clear error. See Ornelas, 116 S.Ct. at 1663; United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir.1985).

In Terry v. Ohio, the Supreme Court held that the police could conduct brief, investigatory stops based upon specific and articulable facts which, together with objective and reasonable inferences, formed a founded or reasonable suspicion of criminal activity. See 392 U.S. 1, 21 (1968); United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir.1994); United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989).

Here, Flores-Campa's van was stopped by police after he was admitted into and then left a suspected narcotics "stash house." As a result of that stop, officers obtained evidence used to convict him. Under the totality of the circumstances, the investigatory stop was supported by "reasonable suspicion." See Ornelas, 116 S.Ct. at 1661 ("reasonable suspicion simply [i]s a particularized and objective basis for suspecting the person stopped of criminal activity" (quotation and citation omitted)); United States v. Cortez, 449 U.S. 411, 417 (1981) (court must look to the totality of the circumstances); United States v. Rodriguez, 976 F.2d 592, 594 (9th Cir.1992) (same).

B. Admission of Evidence Regarding the Prior Charge

We review the district court's evidentiary rulings for an abuse of discretion. United States v. Manning, 56 F.3d 1188, 1196 (9th Cir.1995).

Here, the evidence relating to Flores-Campa's outstanding charge of unlawful transportation of marijuana was properly introduced. Flores-Campa was charged with being a fugitive in possession of a weapon.2 His status as a fugitive is an essential element of this charge. As such, the Government was entitled to introduce the outstanding indictment and arrest warrant, even if the documents indicated the underlying nature of the charges. See United States v. Breitkreutz, 8 F.3d 688, 691-92 & n. 4 (9th Cir.1993).

We review the district court's factual findings in the sentencing phase for clear error. See United States v. Fuentes-Mendoza, 56 F.3d 1113, 1116 (9th Cir.), cert. denied, 116 S.Ct. 326 (1995); United States v. Davis, 36 F.3d 1424, 1436 (9th Cir.1994) (district court's factual findings, including its denial of a downward adjustment based on minor participant status or acceptance of responsibility, reviewed for clear error), cert. denied, 115 S.Ct. 1147 (1995).

Here, the district court was not clearly erroneous in failing to adjust Flores-Campa's sentence downward under the Sentencing Guidelines because Flores-Campa failed to meet his burden of showing that he was entitled to adjustments based on minor participation, acceptance of responsibility, or on the amount of drugs attributable to him. See Davis, 36 F.3d at 1436 (burden on defendant to clearly establish entitlement to downward adjustment for "minor participant" or "acceptance of responsibility"); United States v. Hanoum, 33 F.2d 1128, 1129-32 (9th Cir.1994) (rejecting a challenge similar to Flores-Campa's that the sentence was erroneously based on the entire amount of drugs connected to the drug operation, rather than on a smaller quantity attributable to the defendant), cert. denied, 115 S.Ct. 1702 (1995).

AFFIRMED.