                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4856



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ALFREDO LEON-SANCHEZ,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-32)


Submitted:   April 27, 2005            Decided:   September 23, 2005


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


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Alfredo Leon-Sanchez appeals his jury conviction and

sentence for possession with intent to distribute five hundred or

more grams of cocaine in violation of 21 U.S.C. § 841 (2000).

Finding no error, we affirm.

            Leon-Sanchez argues that the district court erred in

quashing his subpoena for documents held by the custodian of

records for the sheriff’s department of Iredell County, North

Carolina.     The motions to quash the subpoena were referred to a

magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) (2000).           The

magistrate judge granted the motions in part, thereby quashing some

of the document requests and ordering production of others.             The

district court, after a stay of the magistrate judge’s order,

reversed the magistrate judge’s order in part, thereby quashing the

entire subpoena.      See 28 U.S.C. § 636(b)(1)(A).      Thus, this court

must determine if the district court erred in reversing in part the

magistrate judge’s order under § 636(b)(1)(A), which authorizes the

district court to reconsider any pretrial matter referred to a

magistrate    judge   if   the   magistrate   judge’s   order   is   clearly

erroneous or contrary to law. After reviewing the materials before

us on appeal, we conclude that the district court did not err in

reconsidering the magistrate judge’s order and quashing Leon-

Sanchez’s subpoena.




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            Leon-Sanchez also argues that the district court erred in

denying his motion to suppress.         This court reviews the factual

findings underlying a motion to suppress for clear error, and the

district court’s legal determinations de novo.            See Ornelas v.

United States, 517 U.S. 690, 699 (1996). When a suppression motion

has been denied, this court reviews the evidence in the light most

favorable to the government.        See United States v. Seidman, 156

F.3d 542, 547 (4th Cir. 1998).

            With these standards in mind, we conclude that the

sheriff’s officer had reasonable suspicion of unlawful conduct to

make a traffic stop of the vehicle Leon-Sanchez was operating. See

Terry v. Ohio, 392 U.S. 1, 20-22 (1968); United States v. Wilson,

205 F.3d 720, 722-23 (4th Cir. 2000); see also           United States v.

Hassan El, 5 F.3d 726, 731 (4th Cir. 1993) (noting a traffic

violation, no matter how minor, gives an officer probable cause to

stop the driver).    We further conclude that, based on the totality

of the circumstances, the officer had a reasonable suspicion that

criminal activity was afoot in order to ask Leon-Sanchez further

questions   after   the   traffic    stop   was   complete.   See   United

States v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000).

            We also conclude that the district court did not err in

finding that Leon-Sanchez freely and voluntarily consented to the

search of his vehicle.      See Ferguson v. City of Charleston, 308

F.3d 380, 396 (4th Cir. 2002) (noting voluntary consent to a search


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is   an   exception    to   the    Fourth   Amendment       prohibition    against

unreasonable searches). Even if he had not consented, the officers

did not impermissibly broaden the scope of the stop by searching

Leon-Sanchez’s car and conducting a canine sniff for drugs.                      See

Illinois v. Caballes, 125 S. Ct. 834, 838 (2005)                  (“A dog sniff

conducted during a concededly lawful traffic stop that reveals no

information    other    than      the   location   of   a    substance    that    no

individual has any right to possess does not violate the Fourth

Amendment.”).    Furthermore, the drug dog alert gave the officers

probable cause to conduct a warrantless search of the bumper, where

they found the cocaine.           See United States v. Buchanon, 72 F.3d

1217, 1228 (6th Cir. 1995).

            Leon-Sanchez       also     argues   evidence     should    have   been

suppressed under the Fifth Amendment’s equal protection clause

because he was stopped solely because of his race.                     See Whren v

United States, 517 U.S. 806, 813 (1996).                However, the district

court found that the officer could not and did not see the

defendant prior to stopping his vehicle.             We conclude this factual

finding was not clearly erroneous.                 Accordingly, the district

court properly dismissed Leon-Sanchez’s motion to suppress.

            Leon-Sanchez also argues that the district court should

have granted his motion for a judgment of acquittal or new trial.

This court must affirm Leon-Sanchez’s jury conviction if there is

substantial evidence, when viewed in the light most favorable to


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the Government, to support the jury’s verdicts.            Glasser v. United

States, 315 U.S. 60, 80 (1942).          We conclude there was sufficient

evidence to support the jury’s verdict.          We also conclude that the

district court did not abuse its discretion in denying Leon-

Sanchez’s motion for a new trial.          See Fed. R. Crim. P. 33(a).

            Finally,     Leon-Sanchez    challenges      his    sentence      under

Blakely v. Washington, 124 S. Ct. 2531 (2004).1                 See also United

States v. Booker, 125 S. Ct. 738 (2005).            However, he apparently

concedes that the jury found him guilty of possessing the full

amount   of    cocaine    found   in     his   vehicle    (3.98     kilograms).

Accordingly, as the sentence was based upon the jury’s findings of

drug quantity and not judicial factfinding, we find no Sixth

Amendment     error   under   Booker.2     Leon-Sanchez        claims   his    jury

verdict for 3.98 kilograms of cocaine was an unconstitutional

variance from his indictment, which alleged the possession (with

intent) of 500 or more grams of cocaine.              We find there was no

unconstitutional variance.        See United States v. Randall, 171 F.3d

195, 203 (4th Cir. 1999) (noting a variance does not violate

constitutional rights unless the defendant is prejudiced or is

exposed to double jeopardy).


     1
      He raised this objection at sentencing.
     2
      Leon-Sanchez does not argue his sentence was improper under
Booker even though he was sentenced under a mandatory guidelines
scheme. In any event, any Booker error would be harmless because
the district court concluded that it would have imposed an
identical sentence if the sentencing guidelines were invalidated.

                                    - 5 -
            Accordingly, we affirm Leon-Sanchez’s conviction and

sentence.    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




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