US v. Teodoro Rosas-Herrera

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:11-cr-00160-TDS-1 Copies to all parties and the district court/agency. [999001389].. [12-4159]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4159

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TEODORO ROSAS-HERRERA, a/k/a Valentin Villegas Villa,
Defendant – Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00160-TDS-1)

Submitted:

November 2, 2012

Decided:

December 13, 2012

Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

James B. Craven, III, Durham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Angela H. Miller, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Rosas-Herrera

appeals

PER CURIAM:
Teodoro

his

conviction

and

seventy-one months’ sentence for illegally reentering the United
States after having been deported subsequent to an aggravated
felony conviction.

See 8 U.S.C. § 1326(a), (b)(2).

For the

following reasons, we affirm.

I.
On February 6, 2011, Detective James Carter (Detective
Carter) of the Alamance County, North Carolina Sheriff’s Office
was on duty driving his patrol vehicle when he observed another
vehicle, traveling in a weaving pattern at approximately ten
miles per hour in the opposite lane, with its front windshield
completely
four-inch

iced
area

over,
on

with

the

the

exception

driver’s

side.

of
In

a

three-inch

by

judgment

of

the

Detective Carter, the driver of the vehicle could not adequately
see approaching traffic from either the vehicle’s right or left
side,

and

North

Carolina

person

who

therefore,
law.

drives

any

was
See

driving
N.C.

vehicle

recklessly

Gen.
upon

Stat.
a

in

violation

§ 20-140(b)

highway

or

any

of

(“Any
public

vehicular area without due caution and circumspection and at a
speed or in a manner so as to endanger or be likely to endanger
any person or property shall be guilty of reckless driving.”).

2

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After the vehicle passed, Detective Carter turned his
patrol
vehicle

vehicle
he

around

had

in

just

order

observed

to

effectuate

with

the

a

stop

iced-over

of

the

windshield.

Once turned around, Detective Carter observed that such vehicle
had turned left into a driveway and had pulled up to a closed
gate.

Detective Carter pulled his patrol vehicle up behind the

vehicle and activated his blue lights.
Detective
asked

the

driver

registration.

Carter
for

approached
his

the

driver’s

stopped

vehicle

license

and

and

vehicle

The driver admitted that he did not have a valid

driver’s license or vehicle registration, but indicated that he
did

have

a

Mexican

driver’s

license,

identified

Carlos Matias Ortiz, and provided a date of birth.

himself

as

As Detective

Carter returned to his patrol vehicle to run a check on the name
and date of birth, he observed the driver exit the vehicle.
Detective

Carter

then

advised

the

driver

to

remain

in

the

vehicle, but the driver fled on foot.

Detective Carter called

for

foot

back-up

and

chased

the

driver

on

for

approximately

eight to ten minutes until the driver stumbled and fell.

At

this time, Detective Carter secured the driver in handcuffs and
arrested him for resisting a public officer.
By

the

time

Detective

Carter

had

returned

to

his

patrol vehicle with the handcuffed driver in tow, two fellow
officers had arrived on the scene with a drug-sniffing canine.
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The driver was placed in a patrol vehicle while one of the
officers walked the canine around the driver’s vehicle.

The

canine alerted on the driver’s side where the driver’s door had
remained open.

In examining where the canine had alerted, the

officer saw a firearm “‘sticking under the seat.’”

(J.A. 73).

The firearm turned out to be loaded.
Once

at

the

Alamance

County

jail,

the

driver

came

before a magistrate judge and again identified himself as Carlos
Matias Ortiz.

He was charged with the offenses of resisting a

public officer and illegally carrying a concealed weapon.

Of

relevance to the issues on appeal, the driver’s fingerprints,
which had been taken during the routine booking process, matched
the fingerprints of a man named Teodoro Rosas-Herrera.
Carlos

Matias

Ortiz

was

listed

subsequently

admitted

that

Rosas-Herrera

(Rosas-Herrera)

as

his
and

an

alias.

real
that

name
he

was

The name

The
was
a

driver
Teodoro

citizen

of

Mexico.
Further investigation revealed that Rosas-Herrera had
been

removed

deported

to

from
Mexico,

the
and

United
had

return to the United States.

States
never

on

been

November
given

17,

2008,

permission

to

Records also showed that, on March

2, 2007, Rosas-Herrera had been convicted in the United States
District Court for the Western District of North Carolina, of
the offense of conspiracy to possess with intent to distribute a
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quantity of cocaine, which is an aggravated felony under federal
immigration

law.

See

“aggravated

felony”

as

8

U.S.C.

“illicit

§ 1101(a)(43)(B)

trafficking

in

a

(defining
controlled

substance”).
Rosas-Herrera entered a conditional plea of guilty to
one count of illegally reentering the United States after having
been deported subsequent to an aggravated felony conviction, see
id.

§ 1326(a),

appeal

the

(b)(2),

district

reserving

court’s

the

denial

right

of

his

to

challenge

prior

motion

on
to

suppress all information law enforcement collected following his
arrest

that

revealed

fingerprints).

his

true

identity

(e.g.,

his

name

and

The district court sentenced him to seventy-one

months’ imprisonment and three years’ supervised release.

This

timely appeal followed.

II.
Rosas-Herrera

first

challenges

the

district

court’s

denial of his motion to suppress the evidence of his identity.
According to Rosas-Herrera, Detective Carter unreasonably seized
him in violation of the Fourth Amendment when Detective Carter
initially stopped him, and, therefore, all evidence resulting
from such seizure should have been suppressed.

Rosas-Herrera

argues that the initial stop of his vehicle by Detective Carter
violated the Fourth Amendment because Detective Carter lacked
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any reasonable, articulable suspicion that he had committed a
traffic violation in order to justify the stop.

Building on

this argument, Rosas-Herrera argues that he was then in exactly
the same legal posture as the defendants in United States v.
Oscar-Torres, 507 F.3d 224 (4th Cir. 2007), and Arizona v. Gant,
556 U.S. 332 (2009).
Rosas-Herrera’s

challenge

to

the

district

denial of his motion to suppress is without merit.

court’s

The Fourth

Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures,” U.S. Const. amend. IV, and the temporary
detention of an individual during the stop of an automobile by a
law

enforcement

officer

constitutes

a

seizure

of

the

person

within the meaning of the Fourth Amendment, United States v.
Ortiz, 669 F.3d 439, 444 (4th Cir. 2012).
“[o]bserving

a

justification

for

vehicle

for

as

traffic

violation

provides

a

police

officer

detain

as

takes

long

it

537 F.3d 328, 335 (4th Cir. 2008).
enforcement

officers

to

to

incidents of a routine traffic stop.”

444 (“law

Of relevance here,

perform

sufficient

the
the

offending

traditional

United States v. Branch,

See also Ortiz, 669 F.3d at

may

stop

a

vehicle

that

they

observe is violating a traffic law”).
In

considering

Rosas-Herrera’s

motion

to

the

district

suppress,
6

we

court’s
review

denial
the

of

district

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court’s legal conclusions de novo and its factual findings for
clear error, construing the evidence in the light most favorable
to the government.

United States v. Kelly, 592 F.3d 586, 589

(4th Cir. 2010).

Moreover, we must “particularly defer to a

district court’s credibility determinations, for it is the role
of

the

district

credibility

court

during

a

to

observe

pre-trial

witnesses

motion

to

and

weigh

suppress.”

their
United

States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted).
Here, the district court held an evidentiary hearing
on Rosas-Herrera’s motion to suppress, during which it heard
live testimony from Detective Carter regarding, inter alia, the
events leading up to his traffic stop of the vehicle driven by
Rosas-Herrera.

The

Detective

Carter

to

objective

evidence

suspicion

that

district
be

court

credible

support[ed]

Rosas-Herrera

found
and

a
was

the

testimony

concluded

that

reasonable,
operating

of
“the

articulable
his

vehicle

recklessly under the circumstances by attempting to drive on the
roadway without adequate vision through his windshield.”
80).

(J.A.

Based on our review of the facts as found by the district

court and the applicable law, we hold that Detective Carter’s
stop of the vehicle driven by Rosas-Herrera was amply supported
by

reasonable

suspicion,

and

therefore

Fourth Amendment.
7

did

not

violate

the

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Our

holding

takes

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Rosas-Herrera’s

case

completely

outside of Oscar-Torres, and therefore renders such decision of
no aid to Rosas-Herrera on this issue.
defendant

was

convicted

of

illegally

In Oscar-Torres, the
reentering

the

United

States following commission of a felony and deportation.
F.3d at 226.
court’s

507

On appeal, the defendant challenged the district

denial

of

his

motion

to

suppress

the

fingerprint

evidence and the records obtained through it as fruit of his
illegal arrest.

Id.

The government conceded the illegality of

the defendant’s arrest at the appellate level, but argued the
evidence should not be suppressed.

Id. at 227.

judgment

for

and

determine

remanded

whether,

in

the

case

obtaining

the

the

We reversed the

district

defendant’s

court

to

fingerprints

(and attendant records), the police officers were motivated by
an investigative purpose, and if so, ordered the district court
to suppress such evidence.
arrest

in

Oscar-Torres,

defendant’s

fingerprints

Id. at 232.

which
and

led

to

attendant

Unlike the illegal

the

discovery

records

in

of

that

the

case,

there was no illegal arrest in the present case and Detective
Carter’s

initial

stop

of

Rosas-Herrera’s

vehicle

was

legal.

Accordingly, Oscar-Torres is inapposite.
Gant

is

inapposite

as

well.

In

Gant,

the

Supreme

Court held that “[p]olice may search a vehicle incident to a
recent occupant’s arrest only if the arrestee is within reaching
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distance of the passenger compartment at the time of the search
or it is reasonable to believe the vehicle contains evidence of
the offense of arrest.”

556 U.S. at 351.

Rosas-Herrera only

challenges the legality of his initial stop by Detective Carter
and does not separately challenge the legality of the search of
his vehicle following the canine alert on the driver’s side.
See Branch, 537 F.3d at 335-36 (police may order canine sniff of
vehicle as part of routine traffic stop provided it does not
unreasonably delay length of stop).

Accordingly, Gant is of no

help to Rosas-Herrera.
For the reasons stated, we hold the district court did
not

err

in

denying

Rosas-Herrera’s

motion

to

suppress

the

evidence of his identity obtained as the fruit of his initial
stop

by

Detective

Carter.

Accordingly,

we

affirm

Rosas-Herrera’s conviction for illegally reentering the United
States after having been deported subsequent to an aggravated
felony conviction.

III.
Rosas-Herrera challenges his sentence of seventy-one
months’ imprisonment on the basis that the district court should
not have varied upward fourteen months from the high-end of his
advisory sentencing range of forty-six to fifty-seven months’

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imprisonment under the United States Sentencing Guidelines (USSG
or Guidelines).

Finding no error, we affirm.

We review the seventy-one month sentence imposed upon
Rosas-Herrera by the district court for reasonableness under the
deferential

abuse-of-discretion

standard.

United

States

v.

King, 673 F.3d 274, 283 (4th Cir.), cert. denied, 133 S. Ct. 216
(2012).

In reviewing a variant sentence as in the present case,

we consider “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
respect

to

range.”
123

the

extent

of

the

divergence

from

the

sentencing

United States v. Hernandez–Villanueva, 473 F.3d 118,

(4th

Cir.

2007).

Notably,

the

district

court

“has

flexibility in fashioning a sentence outside of the Guidelines
range,”

and

need

only

set

forth

sufficient

explanation

to

satisfy us that it considered the parties’ arguments and has a
reasoned

basis

for

its

decision.

United

States

v.

Diosdado-Star, 630 F.3d 359, 364 (4th Cir.), cert. denied, 131
S. Ct. 2946 (2011).
Our review of the entire record unequivocally shows
that the district court specifically identified its reasons for
the above-Guidelines sentence, which was based on the Sentencing
Guidelines and the 18 U.S.C. § 3553(a) factors, and related to
the particular facts of Rosas-Herrera’s case.
district

court

expressly

stated
10

its

view

For example, the

that

a

seventy-one

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necessary

to

deter

Rosas-Herrera

from

committing further crimes “particularly given the fact that a
federal district court had already sentenced him to 57 months,
and that proved to be insufficient to deter [Rosas-]Herrera from
returning to the United States without permission and, on top of
that,

[he

possessed]

§ 3553(a)(2)(B)

a

(“The

loaded

court,

in

firearm.”

(J.A.

determining

the

136);

see

particular

sentence to be imposed, shall consider . . . the need for the
sentence imposed . . . to afford adequate deterrence to criminal
conduct . . . .”).

For a second example, the district court

stated its view that a seventy-one month sentence was necessary
“to protect the public, particularly given his drug distribution
conviction

and

then

his

recent

detention

after

having

been

caught with a loaded firearm ready to fire.” (J.A. 136); see
§ 3553(a)(2)(C)

(“The

court,

in

determining

the

particular

sentence to be imposed, shall consider . . . the need for the
sentence imposed . . . to protect the public from further crimes
of the defendant . . . .”).

Our review of the entire record

establishes that the district court acted reasonably in both its
decision to vary upward from Rosas-Herrera’s advisory sentencing
range under the Guidelines and with respect to the extent of its
variance.

Accordingly, we affirm Rosas-Herrera’s sentence.

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IV.
In

conclusion,

and sentence.

we

affirm

Rosas-Herrera’s

conviction

We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials
before

the

court

and

argument

would

not

aid

the

decisional

process.
AFFIRMED

12