Unpublished Disposition, 924 F.2d 1063 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1063 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Pedro ROMERO, aka Pedro Hernandez-Ramirez, Defendant-Appellant.

No. 90-50163.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 6, 1990.* Decided Jan. 28, 1991.

Before JAMES R. BROWNING, PREGERSON and LEAVY, Circuit Judges.


MEMORANDUM** 

Pedro Romero appeals his conviction on two counts of transporting illegal aliens, 8 U.S.C. § 1324(a) (1) (B), and his sentence under the Sentencing Guidelines. We affirm.

Romero argues the Border Patrol officers did not have founded suspicion when they stopped his vehicle. However, " [officers are entitled to draw appropriate deductions in light of their experiences as border patrolmen, the characteristics of the particular area, and their knowledge of alien smuggling activities." United States v. Sanchez-Vargas, 878 F.2d 1163, 1166 (9th Cir. 1989). Here, a Border Patrol bus driver had identified a vehicle engaged in suspicious activity the color and appearance of Romero's truck. The vehicle appeared "heavily laden" and Romero presents no reason why this particular truck should not have looked loaded down with six passengers riding in the rear. Romero and his passenger looked nervous, and the passenger's clothing and haircut appeared similar to those of other illegal aliens. The area was notorious for alien smuggling. These factors combined are enough to give the officers founded suspicion. E.g. United States v. Cortez, 449 U.S. 411, 417-19 (1981). Romero's argument the dispatcher tapes would have shown the vehicle could not have been stopped in response to a tip fails because both Border Patrol officers and the bus driver who provided the tip confirmed the officers had acted in response to a tip, and because even without the tip there were sufficient factors to stop the vehicle.

Romero next contends the government destroyed the radio dispatch tapes relaying the bus driver's tip in bad faith and that such evidence would have been exculpatory. However, the government presents undisputed evidence that Romero never specifically requested the tapes until two days after they were destroyed, and general notice that he thought the timing issue relevant is not enough to show bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Romero also fails to demonstrate prejudice since the bus driver and the detaining officials testified and were subject to cross-examination. See United States v. Laurins, 857 F.2d 529, 538 (9th Cir. 1988) (defendant must demonstrate prejudice).

Romero next challenges his sentence under the Sentencing Guidelines. He first claims the judge should have adjusted his sentence downward because his offense was not committed for profit. This is a factual question which we review only for clear error. United States v. Singleton, 1990 U.S.App. LEXIS 18453, 4 (9th Cir. Oct. 23, 1990). Given the presentence report that two witnesses stated they would pay Romero, the ambiguous nature of the trial testimony by witnesses that they did not know who they were to pay, and the lack of any evidence of a non-pecuniary motivation, we will not disturb the lower court's determination.

Romero disputes the sentencing judge's upward departure from the Guidelines. He claims his driving was not erratic, but does not dispute leaving the highway at 65 miles per hour, running a red light through an intersection, reentering the highway and ultimately attempting to flee on foot after abandoning the still-moving truck on the median. High-speed chases and offenses involving large numbers of aliens provide proper grounds for upward departures. United States v. Ramirez De Rosas, 873 F.2d 1177, 1179 (9th Cir. 1989); United States Sentencing Guidelines Manual Sec. 2L1.1, application note 8. The amount of departure was reasonable given the reckless driving--no matter what its speed--and threat to the lives of others.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3