UNITED STATES of America, Plaintiff-Appellee, v. Maurillo ROJAS-MILLAN, Defendant-Appellant.
No. 98-10518.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 12, 2000. Filed Dec. 8, 2000.
The procedures established by the Second and Third Circuits are similar in character to procedures this court has adopted for other types of motions filed by pro se prisoners when a district court‘s recharacterization could have a detrimental impact on the prisoner. For example, in Anderson v. Angelone, 86 F.3d 932, 934-35 (9th Cir.1996), this court held: “When the district court transforms a dismissal into a summary judgment proceeding” it is “obligated to advise pro se litigants of Rule 56 requirements” and to “afford [them] a reasonable opportunity to present all pertinent material.” (internal quotations and citations omitted).
It is in keeping with this court‘s precedent to extend the protections recognized in Anderson to the recharacterization of pro se prisoner motions as
The sentence is VACATED and the matter REMANDED to the district court for a new plea colloquy as to Count 2 and resentencing as to all other counts. The decision of the district court construing Seesing‘s June 15, 1998 letter as a
Kathryn E. Landreth, United States Attorney, and Daniel G. Bogden, Assistant United States Attorney, Reno, Nevada, for appellee the United States of America.
Before: GRABER, FISHER and BERZON, Circuit Judges.
BERZON, Circuit Judge:
Maurillo Rojas-Millan appeals from his conviction and sentencing for (1) possession of methamphetamine with intent to distribute,
I. Background
On March 7, 1998, at about five in the evening, a Nevada Highway Patrol (NHP) Trooper, James Marshall, spotted Rojas-Millan and a companion, Jorge Adame-Farias, driving east along Interstate 80 in Reno. Marshall, understandably, spends a lot of time looking at license plates, and he noticed something strange about the tags on Rojas-Millan‘s 1989 Nissan Sentra: they began with the numeral “4.” This was the first time Marshall had seen white-series California tags that did not begin with either a “1,” “2,” or “3,” and he might have passed them off as brand-new plates except that he also noticed they had 1998 registration stickers. California issued 1998 stickers in 1997; if the plates were in fact new, Marshall thought they would have had 1999 stickers. He therefore suspected that the plates might be fictitious—that either the car, the plates, or the registration stickers might have been stolen—and so he called his dispatch unit to run a check on the plate number.
NHP dispatch ran a check but came up with “no match,” indicating that the number was not listed as a valid California license plate. Marshall double-checked and repeated the number, and again the dispatch unit told him “no match.” These responses heightened Marshall‘s suspicion that the car might be stolen, or at least that the tags and registration might be fictitious. Driving a vehicle with fictitious plates is a violation of Nevada law,
Marshall again called NHP dispatch to verify information on the vehicle and its two occupants. While reviewing the registration documents and awaiting word from dispatch, Marshall questioned Rojas-Millan and Adame-Farias separately about their travel plans. Rojas-Millan explained that he had come to Reno to meet a friend, although he did not know where the friend was to be found, and that he intended to return to Stockton, California, that evening. Adame-Farias claimed that he was a mechanic and that he had come to fix someone‘s car, although he did not know who the owner was, where the car was located, or what kind of car it was.
Dispatch reported that its check of record indices for Rojas-Millan‘s name turned up nothing, but Marshall continued his investigation. He again asked Rojas-Millan where he was going, whether there were guns, alcohol or large sums of cash in the car, and finally, whether he had any drugs. He then asked for permission to search the vehicle. Rojas-Millan agreed and signed a form written in Spanish certifying his consent.
During the search, Marshall saw that a decorative panel in the rear right-hand side of the car had been pulled back and disfigured. When he pulled it back further he found two packages of methamphetamine. Eventually, investigators found a total of ten packages containing four kilograms of methamphetamine in the car.
After his arrest, Rojas-Millan explained that he had received the drugs in Los Angeles and was to deliver them to an unknown individual in the parking lot of the Eldorado Hotel in Reno.
A jury convicted Rojas-Millan of possession with intent to distribute and related offenses, and the district court sentenced him to 188 months in prison. Rojas-Millan filed a timely appeal challenging the conviction and sentence.
II. Rojas-Millan‘s Conviction
Rojas-Millan attacks his conviction on the ground that, for several reasons, the district court should have suppressed evidence gathered at the traffic stop. Rojas-Millan contends: (1) that Marshall improperly stopped his vehicle without probable cause or reasonable suspicion; (2) that Marshall improperly detained him without adequate reasons; and (3) that Marshall improperly searched his car without his consent. We review de novo the district court‘s ultimate finding of reasonable suspicion or probable cause supporting a search or seizure, but review underlying factual findings only for clear error. United States v. Lopez-Soto, 205 F.3d 1101, 1103 (9th Cir.2000). Determinations that consent to a search was voluntary are reviewed for clear error. See United States v. Cormier, 220 F.3d 1103, 1112 (9th Cir.2000) (noting that “consent is a question of fact, and its resolution depends upon the totality of the circumstances“).
A. The Stop
Traffic stops are seizures under the Fourth Amendment, so officers must have at least a reasonable suspicion of criminal misconduct before detaining a driver. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Reasonable suspicion, as this court recently affirmed, “is formed by specific, articulable facts which, together with objective and reasonable inferences, form the basis
Marshall‘s suspicion that Rojas-Millan‘s plates might be fictitious became a reasonable basis for a traffic stop once he ran two checks on the number, both of which came up “no match.” A Nevada statute prohibits “any person” from displaying “any certificate of registration, license plate, certificate of ownership or other document of title knowing it to be fictitious or to have been canceled, revoked, suspended or altered.”
Because Marshall correctly understood Nevada law, the circumstances in this case are quite distinct from those in other recent cases in which we held that the officer‘s suspicion was based on a misunderstanding of the applicable law and therefore not reasonably justified. See United States v. Twilley, 222 F.3d 1092, 1096 (9th Cir.2000) (finding no reasonable suspicion to support a traffic stop of an out-of-state vehicle displaying only a rear license plate when the stop was based on the officer‘s mistaken belief that the state‘s vehicle code required display of both front and rear license plates); Lopez-Soto, 205 F.3d at 1106 (finding no reasonable suspicion to support a traffic stop of a vehicle registered in Baja California with a registration sticker properly affixed to the front windshield when the stop was based on the officer‘s mistaken belief that Baja California‘s vehicle code required display of registration stickers on the rear window). Furthermore, Marshall, unlike the officers in Twilley and Lopez-Soto, had objective reasons to suspect more than just improper registration. Here, based on the “no match” finding from the tag check, he also reasonably suspected the car might be stolen, and thus he had a reasonable suspicion warranting further investigation. Consequently, we conclude that Marshall‘s decision to stop the car was lawful.
B. The Detention
Rojas-Millan next argues that, even if the stop was lawful, Marshall improperly detained him after confirming that his registration was in order, so the district court should have suppressed evidence obtained as a result. The Supreme Court established the basic requirements for detaining a driver after a traffic stop in its decisions in United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), holding that any ques
As noted earlier, the objective facts observed by Marshall raised concerns about more than just technical registration violations. He suspected that the car might be stolen and undertook his initial questioning of the defendants for that reason. The answers offered by Rojas-Millan and Adame-Farias to Marshall‘s questions while he awaited further information from dispatch, however, were oddly vague. Rojas-Millan, for example, claimed that he had come to Reno to meet a friend, although he did not know where or how to get in touch with him. He said that after meeting the friend, he planned to return that same evening to Stockton, California, nearly 200 miles away—a considerable distance for such a short visit, which, to Marshall, suggested a possible “drug delivery, or some type of delivery of something illegal.” Adame-Farias claimed that he was a mechanic and that he had come to Reno to fix someone‘s car, although he did not know whose car or where it was located.
Marshall‘s suspicions about possible misconduct were further deepened by the unusually strong odor of perfume emanating from inside Rojas-Millan‘s car. Based on his training, Marshall suspected that the perfume was intended to mask the smell of illegal drugs.
This combination of suspicious factors justified the short continued detention of the vehicle between the time the record check was completed and the time consent to search was requested. See United States v. Baron, 94 F.3d 1312, 1319 (9th Cir.1996) (holding that the totality of factors must be considered when determining whether reasonable justification for continued detention exists); United States v. Perez, 37 F.3d 510, 514 (9th Cir.1994) (same). The additional questioning that occurred during that period was also permissible, because once questioning begins, “[a]n officer may broaden his or her line of questioning if he or she notices additional suspicious factors,” so long as those factors are “particularized” and “objective.” Id. at 513.
In sum, although Rojas-Millan presented registration papers in his name, Marshall‘s continued detention of Rojas-Millan was justified, because his continued suspicion that illegal activity was afoot remained reasonable.
C. The Search
Rojas-Millan last contends that he did not give adequate consent to Marshall‘s search of the vehicle. The district court considered testimony on this question, however, and determined that consent was given. We find no clear error in its determination.
Although Rojas-Millan signed a consent form, he claims that the Spanish translation of the form was misleading. Specifically, he objects to the use of the verb “registren,” which, according to the testimony of a court translator, could mean either “to search” or “to register.” This argument collapses, however, because the translator further testified that, in the context of the form, “registren” meant “to search.” The district court did not commit clear error by relying on this later testimony and concluding that the language of the form did not mislead Rojas-Millan. Consequently, we affirm the determination that Rojas-Millan voluntarily consented to the search.
Rojas-Millan‘s conviction is therefore affirmed.
III. Rojas-Millan‘s Sentence
We now turn to the various challenges that Rojas-Millan raises to the district court‘s 188 month sentence. First, he contends that the district court improperly enhanced his sentence based on allegations of obstruction of justice. Second, he claims that the district court did not prop
A. Obstruction of Justice
Rojas-Millan argues that the district court‘s findings that he obstructed justice were insufficient and, therefore, that it erred in enhancing his sentence for that reason. We disagree, however, and conclude that the findings are sufficient on the only point to which Rojas-Millan even possibly raised an adequate objection.
The district court adopted the findings of the presentence report (“PSR“), which determined that Rojas-Millan had perjured himself and lied in his testimony in the trial of Adame-Farias. In so doing, the PSR found that he had “willfully impeded or obstructed, or attempted to impede or obstruct, the administration of justice.” Following the PSR‘s recommendation, the district court imposed a two-point upward adjustment under
In United States v. Dunnigan, the Supreme Court held that, “if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same....” 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (emphasis added); see also United States v. Monzon-Valenzuela, 186 F.3d 1181, 1183-84 (9th Cir.1999). Rojas-Millan, however, objected, in writing and orally, to the aberrant behavior and minor participant portions of the PSR, but not to the obstruction of justice portion.
Only after the district court ruled on the basic offense level, including the obstruction of justice enhancement, reserving only the two issues as to which Rojas-Millan had raised objections to the PSR, was there a colloquy, instigated by the government, concerning the obstruction of justice enhancement. Rojas-Millan‘s counsel at that point very briefly stated “just for purposes of the record” that “the obstruction points are not material by any means,” to which the district court responded: “[I]n Mr. Adame-Farias’ trial the whole intent of the testimony of Mr. Rojas-Millan was to demonstrate that Mr. Adame-Farias was an absolute dupe who knew nothing of what was going on, and that plainly gets us into the obstruction of justice aspect.” This response sufficiently meets the obligation to find materiality, because it plainly indicates that Rojas-Millan‘s testimony went to the heart of the case against Adame-Farias: his knowledge that drugs were being transported in the car.2
Assuming that Rojas-Millan‘s after-the-fact submission was a sufficient objection—which we do not decide—it was an objection explicitly directed only to the materiality aspect of perjury, not to the falsity or willfulness criteria. See Dunnigan, 507 U.S. at 94 (holding that, for an obstruction of justice adjustment for perjury under
We therefore reject Rojas-Millan‘s challenge to the district court‘s upward adjustment for obstruction of justice.
B. Minor Participant
Rojas-Millan next contends that he was a minor participant in the
Under
Rojas-Millan contends that the district court‘s definition of “participant” was too narrow. By limiting its considerations to defendants brought to trial, he asserts, the court did not take into account all the relevant actors in the criminal scheme. Although existing case law has not always been clear on this question, we agree with Rojas-Millan and hold that the district court should have evaluated his role relative to all participants in the criminal scheme for which he was charged.
In reaching this conclusion, we begin with our decision in United States v. Webster, 996 F.2d 209, 211-12 (9th Cir.1993), in which we also considered whether a drug courier was entitled to a mitigating role adjustment. In Webster, the district court determined that, with respect to the charged conduct—possession with intent to distribute—it could not say that the defendant was a minor participant, and it denied the reduction. Id. at 212 (“[H]e‘s charged with the possession with intent to distribute, and he is the possessor and he is going to distribute it, and for me to say that he‘s a minor participant in that is really, really stretching it.“). This court vacated the sentence, concluding that, by looking only at the charged conduct, the scope of the district court‘s analysis was too narrow. Id. Instead, this court looked to the broad wording of
In United States v. Petti, 973 F.2d 1441, 1446-47 (9th Cir.1992) (concerning the four-point downward adjustment for minimal participants), and United States v. Benitez, 34 F.3d 1489, 1497-98 (9th Cir.1994) (concerning the two-point downward adjustment for minor participants), this court addressed the separate but related question of whether a defendant‘s conduct “is to be assessed against that of his co-participants in the instant offense, or alternatively, against that of the hypothetical ‘average participant’ in the type of crime involved.” Id. at 1498. Although several courts hold the opposite view, the established rule in this circuit is that “[t]he relevant comparison is between the defendant‘s conduct and that of the other participants in the same offense.” United States v. Klimavicius-Viloria, 144 F.3d 1249, 1267 (9th Cir.1998) (citing Benitez, 34 F.3d at 1498). But cf. United States v. Ajmal, 67 F.3d 12, 18 (2d Cir.1995); United States v. Caruth, 930 F.2d 811, 815 (10th Cir.1991); United States v. Daughtrey, 874 F.2d 213, 216 (4th Cir.1989). See generally Comment, Timothy P. Tobin, Drug Couriers: A Call for Action by the U.S. Sentencing Commission, 7 Geo. Mason L. Rev. 1055, 1073-74 (1999) (discussing the differing interpretation of the mitigating role reduction provision).
A question left unanswered in Petti and Benitez is the one that we must answer today: whether the pool of “co-participants” is limited to the particular defendants standing trial in a given case, or whether it includes all actors who participated in a given criminal scheme. Unlike in Petti and Benitez, in which all the relevant participants appeared before the court, in this case prosecutors have not identified or charged every participant in the charged criminal scheme. Confronted with this situation, the district court adopted a narrow view of “co-participants,” equating participants with defendants, and refused to consider other possible actors in the alleged criminal conspiracy.
This narrow view cannot be squared with the Guidelines’ minor participant provision‘s language or purpose. The Guidelines refer to minor “participants,” not to minor “defendants.”
We therefore conclude that prosecutors need not identify, arrest, or try together all “participants” in a scheme (and thus transform them into “defendants“) in order for the district court to consider their conduct when evaluating a particular defendant‘s relative role. To the contrary, we read
In deciding whether Rojas-Millan was a minor participant, then, the district court should have considered his culpability rela
The district court made no findings comparing Rojas-Millan‘s role relative to other participants in the criminal scheme.5 In the absence of such findings, we cannot say whether he was substantially less culpable than other participants and entitled to a two-point downward adjustment under
C. Aberrant Behavior
Rojas-Millan‘s final challenge is to the district court‘s refusal to grant a downward departure for aberrant behavior. We review de novo a district court‘s conclusion that it lacks authority to depart downward, United States v. Mena, 925 F.2d 354, 355 (9th Cir.1991), but lack jurisdiction to review a discretionary refusal to depart downward, United States v. Morales, 972 F.2d 1007, 1011 (9th Cir.1992). The critical question, then, is whether the district court here, in denying the downward departure, concluded that it lacked authority to depart downward, or instead exercised its discretion and declined to do so.
In rejecting the request for a downward departure for aberrant behavior, the district judge, after hearing arguments from both sides concerning whether a downward departure for aberrant behavior was appropriate,6 expressed frustration with the vagueness of the aberrant behavior standard, noting that “[a]ll you get on page eight of the guidelines is a single sentence that talks about a single act of aberrant behavior that may justify probation at higher offense levels. I envy other judges who have been able to assemble some kind of history that allows them to make some sense out of this.” The district judge then ruminated generally that, in Rojas-Millan‘s case, “the guidelines have failed us. We cannot shape a sentence for Mr. Rojas-Millan as we should be able to” but, with respect to the particular question of downward departure, said only that “I reject the aberrant behavior request for a downward departure.” Although this statement may well have been intended as an exercise of discretion declining a downward departure, given the general tenor of the district court‘s comments we are left with some doubt whether the court in fact recognized its discretion.
Because, after reviewing the record, we are left with some doubt concerning whether the district court in this case exercised its discretion or, instead, determined that it lacked the authority to do so, we decline to rule on this question at this time. Rather, we leave it to the district court on remand to clarify its ruling on the aberrant behavior departure. See Dickey, 924 F.2d at 839 (holding that, where it is unclear “from the record whether the district court‘s ruling on this issue was an exercise of its discretion or a legal ruling,” remand for clarification is preferable).
IV. Conclusion
For the foregoing reasons, we affirm Rojas-Millan‘s conviction but vacate the district court‘s sentence.8 The case is hereby remanded for proceedings consistent with this decision.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
GRABER, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority‘s opinion except with respect to Part III(C), from which I respectfully dissent. In my view the district court clearly exercised its discretion to refuse to depart downward on the basis of “aberrant behavior.” That being so, we lack jurisdiction to review the court‘s decision. Morales, 972 F.2d at 1007, 1011.
The district judge was saying, in effect, “I hate these guidelines, especially this
But, nevertheless, there we are.
Now, I would—I reject the aberrant behavior request for a downward departure....
The wording of rejecting a request means that the court entertained the request, but said “no.” In those circumstances we lack jurisdiction to entertain the appellant‘s challenge.
Nothing about the sentence “I reject the aberrant behavior request for a downward departure” is ambiguous; nothing about it hints that the court thought that it was unable to entertain the request. The court had asked the parties for arguments about whether it should depart downward for “aberrant behavior.” The parties presented arguments pro and con, but both sides clearly assumed that the court could depart downward on that basis if it thought it was justified in doing so.
Finally, and perhaps most importantly, nothing in the court‘s frustrated musings hints that the court thought that it was without authority to grant the request if it wanted to. Look by contrast at what the court said with respect to the “minor participant” question:
[A]ll we do have from the standpoint of participants are the two defendants, Mr. Adame-Farias and Mr. Rojas-Millan.
I leave for the Circuit to decide whether I do have the power to go two levels downward. It doesn‘t appear ... that I do.
In summary, the record plainly reflects that the district court knew that it had discretion but decided to reject Rojas-Millan‘s request for a downward departure because of “aberrant behavior.” Accordingly, I dissent from Part III(C).