*3 Highway Texas 385 is notorious for GARZA, Before EMILIO M. smuggling, months, and six PARKER, STEWART and Judges. Circuit Agent Graham had noticed an increase in alien and smuggling apprehensions on that PER CURIAM: highway. Agent Graham attributed this Jacquinot appeals Michael Brett his con- activity increase in Highway on 385 to the guilty plea ditional conviction and sentence Border Patrol’s enhanced enforcement on possession with intent to distribute nearby other highways. marijuana. argues He the district early morning hours of Sunday, (1) court by: denying erred motion his 16, 2000, January Agents Graham and suppress the evidence obtained from a rov- Snodgrass parked were Highway ing patrol border stop of the truck in approximately 75 north miles of the United (2) which he was a passenger applying and a.m., border. At 5:45 States/Mexican 2Dl.l(b)(l) § U.S.S.G. to increase his base agents were notified Marfa Sector offense level possession of a firearm. Communications vehicle sensors locat- We affirm. Big ed inside Bend Nationаl Park and well within 50 miles of the United States/Mexi-
I. FACTS can border had indicated two northbound Michael Brett Jacquinot was indicted for traveling vehicles park. from within the possession with the intent to distribute The area in which the sensors are located 1,000 between kilograms 100 and of mari- very remote and only by is intersected 841(a)(1). juana, violation of U.S.C. ranch roads. The fact that two vehicles suppress moved to the evidence approximately activated the sensors at obtained as the stop result of the same time made suspicious Graham vehicle in riding, which he was asserting may one be a lead car and the other a load patrol agents the border did not have carrying Subsequent contraband. ve- the vehicle. hicle sensors were triggered, indicating to Agent Graham that the two vehicles that An evidentiary hearing was held on Jac- had triggered the first sensor were con- quinot’s motion. Agent Border Patrol An- tinuing toward their locаtion. Graham, drew P. a three-year veteran Patrol, the Border a.m., testified that he and At approximately 6:45 Gra- eleven-year veteran Border Patrol ham pass by observed two vehicles his Jay Snodgrass Alpine, were stationed in location. Agent Graham believed Texas, and assigned patrol a 140- these were the vehicles had activated mile area of the United the first sensor park, within the and he States/Mexican border, including Bend Agent Snodgrass began National and to follow them patrol Park. experience separate While Graham’s marked Border Patrol vehicles. Texas, area, was all in Alpine, Snod- The first passed vehicle that had grass Alpine had transferred to a few location was a late model four-door earlier, having previously months carrying served sedan Anglo couple older Operations the Marfa Sector Area bearing Cen- registration receipt taped signal, turn аctivated its left stop sign, Mississippi license to the windshield for five seconds stopped typical of the then remained appeared The vehicle plate. 90. Highway turning left onto park. coming out of the before tourist traffic pause at truck’s found the directly the ve- behind got Agent Graham than what longer stop sign and the to be much registration, its to check hicle also normally. Agent Graham normally to drive sees. he continued vehicle strange first to be the truсk’s left turn concluded found Agent Graham any Highway coming up not involved most vehicles probably because vehicle road on that straight continue activity. 385 would illegal Interstate *4 Fort Stockton toward large a white vehicle was second The left, began traveling truck By turning the equipment a lot truck with pickup Ford however, the most direct Alpine; toward truck a work bed; to be appeared it its Big Bend travel from logical route of on its park a sticker not have and did Agent Gra- Highway Alpine is 118. to was able Agent Graham windshield. to such a most visitors experience, ham’s a small- driver was only that the see stations have gas limited remote area with cap. wearing a person baseball framed roads to take. which a and know map to see surprised was Graham Agent on a park out of the coming work truck through Marathon then drove The truck o’clock. He morning before six Sunday There a school per hour. was at 20 miles leaving vehicles normally saw construction per 20 miles limiting speeds to sign zone of the work at the end groups park the flashing, but the sign was hour the when end of Friday evenings day or on Sunday it was a flashing, sign not was a Kansas The truck bore week. the work pedestrians, no morning, and there were Graham Agent made plate, which license children, on the street. or other vehicles hires park typically suspicious because try- truck was Graham felt Agent Addition- the local area. contractors from pulled over. being ing avoid a recent was aware of ally, Agent Graham Snodgrass’ confirmed Graham Al- operation in the smuggling narcotics carrying the truck observation Kansas. destined for locations pine area tank, boxes, an air gas spare tool car two got to within Agent Graham for a total following the truck tank. After registra- the truck to read lengths minutes, fifteen Graham approximately from ten followed the truck and then tion likely than more it was determined and Snod- lengths. Agents Graham illegal involved the truck was not that truck while to follow the grass continued on: was based activity. His determination it. registration information they awaited non- apparently that this hour the unusual hour per miles to fifteen The truck slowed park; left work vehicle tourist Typically, speed limit. average below since he had plate, license Kansas truck’s dra- not see vehicles does Agent Graham or- smuggling experienсe with personal change their unless matically marijuana from transporting ganization limit traveling the speed vehicle was not Kansas; the absence area to Bend agent. being before followed on the vehi- sticker park registration in the it not cle, indicating that been had obtain the were unable to agents time; the fact that any length of of com- for registration information because transited the to have appeared the truck continuеd they but puter-system problems, side, east to the the west side ap- park from the truck the truck. As to follow recently smugglers a tactic Texas, at a which was Marathon, stopped it proached conclusions, using legal to circumvent Border Patrol its including whether operations; checkpoint Highway traffic or there was reasonable stop, reputation smuggling are reviewed de novo. 385’s United States v. Inocencio, narcotics; aliens and and the driver’s be- A factual is not they following
havior when
the truck.
erroneous
as
long
plausible
is
stopped
light
the truck 70 or 80
record
aas whole. United States v. Ship
miles from the United
bor-
States/Mexico
(5th Cir.1992).
ley, 963 F.2d
der.
Fur
ther,
evidence presented
pre
“[t]he
at a
Jacquinot’s
The district court denied
trial
healing
suppress
on motion to
motion, determining
agents’ stop
light
viewed
most favorable to the
justified by
of the truck Inocencio,
prevailing party.”
40 F.3d at
suspicion and
not
violate
Fourth
Amendment.
entered a condi-
plea
guilty, reserving
right
tional
his
A
patrol
border
agent conducting
appeal
suppression
the denial of his
mo- a roving patrol may make a temporary
*5
(“PSR”)
presentence report
ap-
tion. The
investigative stop of a
only
vehicle
if the
plied
adjustment
Jacquinot’s
a two-level
to
agent
specific
facts,
is aware of
articulable
possession
base offense
level
the
together with ratiоnal
inferences from
dangerous weapon, as two unloaded hand-
facts,
those
that reasonably
suspi
warrant
guns
in
had
found
the truck. See
cion that
occupant
engaged
the vehicle’s
is
2D1.1(b)(1).
Jacquinot
U.S.S.G.
filed
in
activity.
criminal
See United States v.
objection
adjustment, arguing
to the
that it
873, 884,
Brignoni-Ponce,
422 U.S.
95
clearly improbable
weapons
the
2574,
(1975);
S.Ct.
Nevertheless,
is well established
“[i]t
Agent Graham testified that as he fol-
reputation
smuggling
a road’s
as a
truck,
lowed the
it:
dramatically
slowed
route adds to the reasonableness of
per
fifteen miles
hour
below the
Zapata-Ibarra,
limit,
agents’ suspicion.”
although
previously
it had not
added)
(emphasis
(quota-
F.3d at 881-82
speeding;
stopped
stop
remained
at a
sign
omitted).
seconds;
tion and citation
This factor
for five
made an unusual turn
weighs
suspicion.
Alpine
in favor of
and traveled toward
an
reasonable
on
indirect
route;
obeyed
sign
school zone
patterns
Usual traffic
speeds
flashing, although
limited
while
testified that
traffic is
sign was not then flashing. The district
very light coming
out of
Bend
typically
court concluded that the driver’s behavior
morning
before six o’clock the
suspicion.
added to the
truck
surprised
he was
to see a work
Jacquinot argues
suspi-
that it was not
leaving
park
early
Sunday
so
on a
cious for the truck to slow down after
morning. The district court thus consid-
Agent Graham followed it within two car
presence
highway
ered the truck’s
it,
passed
lengths,
got
and then
behind it
at that
time to be a deviation from the
again. He further
that it
contends
would
typical
patterns
traffic
that added to rea-
prudent
not be unusual for a
out-of-state
suspicion.
sonable
Highway
traveler to
at the
385 and
Jacquinot argues
leaving Big
Bend Highway 90 intersection for five seconds to
early in
morning
should not contribute
town,
way
determine the
nearest
suspicion.
to reasonable
He notes that
Alpine,
Highway
which was
or to travel at
Graham testified that
was not
posted speed
per
90’s
limit
miles
get
early
unusual for
visitors to
hour.
*7
However,
trip
start on
Agent
their
home.
Although
presence
deceleration in the
specifically
Graham
testified that hе did
patrol
may
completely
a
be
innocent
not believe he had ever seen a
vehi-
work
behavior,
this court has noted
such
park
Sunday morning
cle leave the
on a
may
suspicious if
behavior
be
the driver
typically
and that such vehicles
in
leave
speeding
was not
when first observed.
groups
day
at the end of the work
or work
Villalobos,
Agent Graham testified that he had
Alpine
travel route from
Bend to
does
years’ experience
three
serving
trigger suspicion.
Zapata-Ibarra,
as a Bor-
See
agent
der
in
Alpine
(approving
Patrol
area and F.3d at 884
the district court’s
Agent Snodgrаss
years’
had eleven
route
a
consideration of
indirect
experience
agent,
suspicion).
as a Border Patrol
supporting
with
factor
reasonable
experience
a few months of that
in
to the infer-
weight
the This court affords due
Alpine area. The district court concluded ences law enforcement officers draw from
agents’ previous experience
leading up
that the
in the
historical facts and the events
Considering
totality
quinоt’s
suppress,
motion to
as the border
stop.
Id.
to a
behavior,
in
weighs
this factor
in
patrol agents’ stop
the driver’s
of the truck which he
suspicion.
reasonable
riding
suspi-
favor of
was
was based on reasonable
occupants
cion that the truck’s
were en-
aspects
the vehicle
Particular
881;
in
gaged
illegal activity. See id.
truck:
testified
Graham
Inocencio,
an air
for
session
windshield,
indicating that
had not
its
park for
any
in
tourist areas of the
that the district
also contends
time;
a
any
and bore Kansas
length
2Dl.l(b)(l)’s
§
applying
in
court erred
although
uses local
plate,
license
upward adjustment
posses-
two-level
The district court did not err
contractors.
weapon
drug
in connection with a
sion
appearance
determining
in
trafficking
Jacquinot argues
offense.
to the
truck contributed
reasonable
although there were two unloaded hand-
suspicion.
truck,
guns in the
failed
Government
Although
spe-
the district court did not
prove
clearly improbable
that it
not
it,
cifically
regarding
address
the factor
possessed
handguns
in con-
he
those
illegal trafficking
recent
information about
drug
nection with his
offense.
in aliens or narcotics
the area is also
case.
testi-
relevant
this
ap
The district court’s decision to
personally
aware of “a lot
fied
he was
2Dl.l(b)(l)
§ply
a factual determination
smuggling taking
of’
recent narcotics
for clear
reviewable
error. United States
place through
Alpine
area that was
Westbrook,
v.
1192-93
destined for locations
Kansas. Since Cir.1997).
2Dl.l(b)(l) provides
Section
question
the truck
bore Kansas license
a two-level increase in the offense level for
plate,
weighs
this information
favor of
dangerous
drug trafficking offense “[i]f
de-
Grahаm’s
firearm)
weapon (including
pos
termination.
government
sessed.” “The
has the burden
Finally,
as there is no indication
proof
showing
under
2D1.1 of
Jacquinot,
only pas-
record
truck’s
preponderance
that a tem
of the evidence
any
senger,
suspicion,
caused
the factor
poral
spatial relation
existed between
number,
regarding
appearance,
weapon,
drug trafficking activity,
passengers
behavior of the
is the sole fac-
defеndant.” United States Vas
*8
support
tor
does not
the
rea-
Cir.1998) (in
(5th
909,
161 F.3d
912
quez,
suspicion
sonable
determination. See Za-
omitted).
quotation
ternal
and citation
pata-Ibarra,
(stating
Viewing light the evidence the most applied weapon pres if should be favorable to the Government and consider- ent, circumstances, ing totality of the unless the defendant establishes weapon denying clearly improbable district court did not err in Jac- it was
431 drug trafficking the offеnse. See his For purposes was connected with offense. comment, 2Dl.l(b)(l) 2Dl.l(b)(l), (n.3); § § United adjustment, “[i]t is 1213, Marmolejo, v. 106 F.3d 1216 States necessary possession not of the weapon Cir.1997). (5th sufficiently ... to be connected with the prosecution crime to warrant as an inde generally A is considered PSR pendent firearm offense.” United States sufficiently considered reliable be Villarreal, (5th 1218, v. 920 F.2d 1221 Cir. in factu making trial court as evidence 1991). And it is not material that guns required by al determinations the sentenc 2Dl.l(b)(l) loaded; were not added West, ing guidelines. v. 58 United States punishment drug height offenders who 133, In pres F.3d 138 danger en the drug trafficking by pos case, adopted ent the district court sessing a dangerous weapon, and the mere pounds mari findings PSR’s 286.44 not, presence gun, of a loaded or can esca juana found in a toolbox in the were bed danger. late the See United States v. Jacquinot riding the truck which Mitchell, (5th Cir.1994). 271, 31 F.3d 278 handguns and that two unloaded Finally, it Jacqui- does not matter whether found the cab of the truck. actually not used or intended to use the findings does not contest these and even offense; guns his drug-trafficking acknowledges ammunition was also pertinent “they fact is that could have truck. Accordingly, found the dis Menesses, been so used.” v. United States err, otherwise, trict court not or (5th Cir.1992) 420, 429 (emphasis § applicable 2D1.1 was be added). Jacquinot’s sentence must there temporal spatial cause there was a fore be affirmed. relationship Jacquinot, guns, between drug trafficking and his offense. See Brown, III. CONCLUSION 261
United States F.3d (5th Cir.2000) 2Dl.l(b)(l) § (applying ad foregoing, Based on the we affirm Jac- justment shotgun where found in truck of quinot’s conviction sentence. transport drugs), vehicle used to vacated AFFIRMED. grounds by other Randle v. United — States, U.S. -, 121 S.Ct. PARKER, Judge, ROBERT M. Circuit (2001); L.Ed.2d 950 v. Mus United States specially concurring: (5th Cir.1995) 927, 929, quiz, 45 F.3d 2Dl.l(b)(l) § (applying adjustment where absurdity of our Fourth Amend gun under the seat of car used in found jurisprudence, ment relates to narcotics). attempted theft of Texas, sоuthern border area of is well by Judge illustrated Wiener’s dissent Jacquinot’s There is no merit to Zapata-Ibarra. States v. addi United argument charged that because he was not tion to the factual scenarios he lists in his 924(c)(1) with the 18 U.S.C. offense blessed, judicially dissent that we have we possessing a firearm in furtherance spending can five at a now add seconds drug trafficking offense and because left, Stop sign turning driving *9 Snodgrass’ guns memo stated that mph a school zone when the through lоaded, attempt were not no was made to blinking light off. them, use and there was no evidence that guns against stop seventy-five had for use miles from been intended officers, border, beyond fifty im our artificial law enforcement well that the probable guns were connected to mile limit. There is no evidence City Columbia; Carney, R. border. The articu- James crossed the truck had Defendants-Appellees. car/following car had of lead lated reason fact which decreases the dispelled, a No. 00-60256. (undisclosed point that at some relevance Appeals, United States Court of security within the two purposes) Fifth Circuit. passed a sensor. The officers also vehicles highly suspicious slowing mentioned July limit within the defendants li- being followed and the Kansas point vehicle. This last plate cense on the significance for one of the particular
officers, point since at one his career he involving
made a case a Kansas destina-
tion. principled
I find no rational or basis
upon which to conclude either reason- probable or cause existed
able justify I
that would this ease. I specially recog-
choose to concur because time, point that at
nize this this
circuit, a would an exercise in dissent be
futility. hopeful I remain that at some time,
point hysteria regarding drugs impact
ill-fated war on and its Fourth Amendment will subside again prevail.
the rule of reason will Clayton McCLENDON,
Peter
Plaintiff-Appellant, COLUMBIA;
CITY OF al., Defendants,
et