                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 21, 2009
                    UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                      No. 09-8009
          v.                                             (D. Wyoming)
 LUIS ALFONSO AYALA-CABRERA,                   (D.C. No. 2:07-CR-00242-CAB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

I.    Introduction

      Defendant-Appellant, Luis Alfonso Ayala-Cabrera, was charged in a multi-

count indictment with drug, firearm, and immigration crimes. Ayala-Cabrera


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
filed a motion to suppress evidence seized during a roadside search of his vehicle.

After an evidentiary hearing, the district court denied the motion. Ayala-Cabrera

then pleaded guilty to three of the charges, preserving his right to appeal the

denial of his suppression motion. See Fed. R. Crim P. 11(a)(2). He was

sentenced to 120 months’ imprisonment and four years’ supervised release. In

this appeal, Ayala-Cabrera challenges the denial of his suppression motion.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the denial of

Ayala-Cabrera’s motion.

II.     Background

        On July 19, 2007, Ayala-Cabrera was pulled over on I-80 by Jeremy Beck,

a trooper with the Wyoming Highway Patrol. Trooper Beck testified Ayala-

Cabrera was traveling eighty-four miles per hour in a seventy-five mile per hour

speed zone. After determining Ayala-Cabrera did not have a valid driver’s

license, Trooper Beck issued him a citation for driving without a license and also

issued him a warning for the speeding violation. At approximately 4:15 p.m.,

after conducting a cursory search of Ayala-Cabrera’s vehicle, 1 Trooper Beck

terminated the traffic stop and Ayala-Cabrera drove away from the scene of the

stop.




        1
            This search is not challenged in this appeal.

                                             -2-
      Shortly before 5:00 p.m., Wyoming Highway Patrol trooper Benjamin

Peech observed Ayala-Cabrera traveling eastbound on I-80 at a speed of

approximately eighty-two miles per hour in a seventy-five mile per hour speed

zone. Peech initiated a traffic stop and approached the vehicle. Peech testified

Ayala-Cabrera told him his cruise control was set at seventy-five miles per hour

but then admitted the oversized tires on the vehicle affected the accuracy of his

speedometer. Peech asked Ayala-Cabrera for his license, proof of insurance, and

registration. Ayala-Cabrera gave Peech an Oregon identification card, a

California registration indicating the vehicle belonged to someone else, and

California insurance papers. He also gave Peech copies of the citation and

warning Trooper Beck had issued to him less than one hour earlier. Ayala-

Cabrera told Peech he was en route to Chicago to visit his family for

approximately one month.

      Peech issued Ayala-Cabrera a warning for speeding, returned his

documents, and told him he was free to go. When Peech re-contacted him,

Ayala-Cabrera agreed to answer additional questions. At the suppression hearing,

Peech testified several things about the encounter made him suspicious: Ayala-

Cabrera was exceedingly nervous, the vehicle smelled strongly of air freshener,

Ayala-Cabrera had very little luggage for a one-month trip, and some of the

answers given by Ayala-Cabrera’s passenger were inconsistent with the answers

given by Ayala-Cabrera. Based on his suspicions, Peech obtained written consent

                                         -3-
to search Ayala-Cabrera’s vehicle. During the search, Peech found cocaine,

methamphetamine, a 9mm pistol, ammunition, cash, and a digital scale.

       Ayala-Cabrera was charged with possessing methamphetamine and cocaine

with intent to distribute, possessing a firearm in furtherance of a drug trafficking

offense, being an illegal alien in possession of a firearm and ammunition, and

illegally reentering the United States after having previously been deported. He

moved to suppress the evidence discovered during the search of his vehicle,

arguing in his written memorandum that the stop initiated by Peech was not based

on any traffic violation. The district court denied the motion, finding, inter alia,

that the traffic stop by Peech was “absolutely legitimate” because Ayala-Cabrera

was “speeding 82 in a 75-mile-an-hour zone.” Ayala-Cabrera entered a

conditional guilty plea and now appeals the denial of his suppression motion.

III.   Discussion

       When reviewing the denial of a motion to suppress, this court views the

evidence in the light most favorable to the Government and accepts the district

court’s factual findings unless they are clearly erroneous. United States v.

Winder, 557 F.3d 1129, 1133 (10th Cir. 2009). The ultimate determination of

whether a traffic stop was reasonable under the Fourth Amendment is a question

of law reviewed de novo. United States v. Price, 265 F.3d 1097, 1104 (10th Cir.

2001). “The defendant bears the burden of establishing a Fourth Amendment

violation.” United States v. Patterson, 472 F.3d 767, 775 (10th Cir. 2006).

                                          -4-
      The only issue raised in this appeal is a challenge to the district court’s

finding that the traffic stop initiated by Trooper Peech was justified at its

inception. Ayala-Cabrera’s sole support for this argument is a single sentence in

his appellate brief which conveys his ostensibly personal belief that “[i]t just does

not make sense that an individual” would continue to speed so soon after

receiving a warning for speeding.

      Ayala-Cabrera’s argument is wholly frivolous. 2 At the suppression

hearing, the government introduced testimony from Trooper Peech that the radar

detector in his patrol car indicated Ayala-Cabrera was traveling eighty-two miles

an hour. Peech further testified Ayala-Cabrera acknowledged that the oversized

tires on his vehicle caused him to travel faster than the seventy-five-mile-per-

hour speed set on his cruise control. Ayala-Cabrera can point to no evidence in

the record that contradicts Peech’s testimony or otherwise shows the district

court’s factual finding is clearly erroneous.




      2
       Appellant’s counsel is reminded that he has an obligation pursuant to
Anders v. California to conduct a “conscientious examination” of his case. 386
U.S. 738, 744 (1967). If that examination reveals the “case to be wholly
frivolous,” counsel should so advise this court and request permission to
withdraw. Id. Counsel did not fulfill that obligation in this appeal.

                                          -5-
IV.   Conclusion

      The order of the district court denying Ayala-Cabrera’s motion to suppress

is affirmed.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




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