Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 30 (9th Cir. 1991)

No. 90-50508.

United States Court of Appeals, Ninth Circuit.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE,**  District Judge.

MEMORANDUM*** 

Customs officials may lawfully stop a vehicle for investigative purposes if they have a reasonable suspicion, based on articulable facts, that the driver or passenger is engaging in criminal activity. United States v. Cortez, 449 U.S. 411, 417-18 (1981); United States v. Corral-Villavicencio, 753 F.2d 785, 789 (9th Cir. 1985). Here, Inspector Davidson decided to stop Mulgado-Solis because his pick-up truck looked freshly painted, the chrome molding on the bed was slightly higher than the chrome on the cab, and the bed of the pick-up looked slightly raised. This seemed particularly suspicious as Davidson had recently studied several cases in which smugglers attempted to conceal contraband in false compartments under truck beds; he was also mindful that heavy drug trafficking occurred at this particular port of entry. Based on this information, Davidson had a reasonable suspicion that Mulgado-Solis was engaged in criminal activity and thus was justified in stopping him.

Customs officials may conduct an "extended border search" if there is reasonable certainty that any contraband the suspect may possess was acquired before crossing the border into the United States. United States v. Caicedo-Guarnizo, 723 F.2d 1420, 1422 (9th Cir. 1984). Inspector Davidson first observed Mulgado-Solis less than fifty feet from the primary border inspection station, traveling directly away from it. Davidson kept Mulgado-Solis under surveillance continuously until he stopped him about a mile up the highway. This evidence supports the district court's finding that it was reasonably certain any contraband in the truck had come across the border with Mulgado-Solis. See United States v. Alfonso, 759 F.2d 728, 735 (9th Cir. 1985) (continuity of surveillance is a factor); Caicedo-Guarnizo, 723 F.2d at 1422 (time and distance between border crossing and search are factors).

Because both the stop and search were valid, the district court properly denied the motions to suppress.

B. Application of Sentencing Guidelines.

The district court may make a downward adjustment based on a defendant's mitigating role pursuant to section 3B1.2 of the Sentencing Guidelines. United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990). The district court here declined to apply section 3B1.2 because Mulgado-Solis failed to demonstrate by a preponderance of the evidence that his role in the drug smuggling operation was "minor" or "minimal." See United States v. Howard, 894 F.2d 1085, 1090 (9th Cir. 1990). Mulgado-Solis has presented nothing to suggest that the district court's finding was erroneous, much less clearly erroneous. See United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

The Honorable Stephen M. McNamee, United States District Judge, District of Arizona, sitting by designation

 ***

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