                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 21 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30350

              Plaintiff - Appellee,              D.C. No. 1:10-cr-30058-PA-4

  v.
                                                 MEMORANDUM*
JESUS HUMBERTO SOTO-VALENCIA,
AKA Jesus Soto-Valencia,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                     Argued and Submitted November 5, 2012
                                Portland, Oregon

Before: ALARCÓN, McKEOWN, and NGUYEN, Circuit Judges.

       Jesus Soto-Valencia appeals his conviction by conditional guilty plea and

sentence for conspiracy to manufacture 1000 or more marijuana plants in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii) and § 846. He contends that the district




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court erred by denying his motion to suppress and finding him ineligible for safety-

valve relief. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Soto-Valencia’s voluntary decision to stop his vehicle and converse with

Officer Thomas for the first 30 seconds or so of the encounter did not implicate the

Fourth Amendment. See United States v. Al Nasser, 555 F.3d 722, 726 (9th Cir.

2009). Thereafter, in light of the totality of the circumstances, Thomas had

reasonable suspicion to detain Soto-Valencia to check his identification. See

United States v. Christian, 356 F.3d 1103, 1106 (9th Cir. 2004). Thomas

encountered Soto-Valencia driving miles past a road closure sign in an area of

suspected marijuana grow operations, was told an implausible story about a

camping trip, observed the vehicle occupants’ scared demeanor and inappropriately

heavy clothing, and knew from an intelligence briefing that drug trafficking

organizations were bringing groups of Hispanic males into the area to staff the

grow operations. Cf., e.g., United States v. Baron, 94 F.3d 1312, 1319 (9th Cir.

1996), overruled on other grounds by United States v. Heredia, 483 F.3d 913 (9th

Cir. 2007) (en banc).

      Upon learning from Soto-Valencia’s identification card that he was likely

connected to an individual who had been arrested earlier that day in the suspected

grow area, Thomas had an additional ground to suspect that Soto-Valencia was


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involved in the marijuana operation. It is reasonable to conduct further

investigations “based on facts learned and observations made” during the course of

an otherwise lawful stop. United States v. Turvin, 517 F.3d 1097, 1102 (9th Cir.

2008).

      That Soto-Valencia’s vehicle was not included on Thomas’s “probable cause

sheets” is of no moment. There were only two vehicles listed on the sheets, and

although officers had already stopped both and arrested their occupants, Thomas

suspected from the intelligence briefing that there were many persons in various

locations throughout the national forest who were growing marijuana. Likewise,

Thomas’s observation that Soto-Valencia and his companions did not “stink of

weed” did not diminish the reasonableness of his suspicion. Soto-Valencia was

heading into the suspected marijuana grow area and had no obvious reason to

transport marijuana in that direction.

      The stop’s scope and duration were also reasonable. Soto-Valencia and his

companions remained in their car until their arrest, and Thomas did no more than

check Soto-Valencia’s identification and ask a few questions relevant to the

investigation. The investigatory stop lasted no more than 23 minutes—a

reasonable time given the language barrier, the other vehicle that Thomas was

already dealing with, and the fact that the Forest Service officers with whom


                                         3
Thomas needed to communicate were already busy interrogating and processing

the arrestees from earlier in the day. See United States v. Sharpe, 470 U.S. 675,

685 (1985).

      Soto-Valencia also challenges the district court’s finding at sentencing that

he did not qualify for safety-valve relief because he was an organizer, leader,

manager, or supervisor of others in the criminal activity. See 18 U.S.C. §

3553(f)(4); U.S. Sentencing Guidelines Manual § 5C1.2(a)(4). Soto-Valencia

helped recruit persons to work at the grow sites, purchased supplies for them,

transported them to work, and expected to earn a share of the overall marijuana

yield rather than—as did the workers at the grow sites—a daily payment. In light

of this evidence, the district court did not clearly err in finding that Soto-Valencia

was, to some extent, responsible for organizing others to carry out the grow

operation. Consequently, the court did not abuse its discretion in ruling Soto-

Valencia ineligible for safety-valve relief. See United States v. Riley, 335 F.3d

919, 929 (9th Cir. 2003) (quoting United States v. Harper, 33 F.3d 1143, 1151 (9th

Cir. 1994)).

      The record contradicts Soto-Valencia’s contention that the district court

believed it would be unjust to withhold application of the safety valve in his case.

Even if he were correct, however, the court had no discretion to sentence him


                                           4
below the mandatory minimum once it found that Soto-Valencia failed to meet one

of the requirements for safety-valve eligibility. See United States v.

Cardenas-Juarez, 469 F.3d 1331, 1334 (9th Cir. 2006); see also United States v.

Biao Huang, 687 F.3d 1197, 1203 (9th Cir. 2012).

      Soto-Valencia’s remaining arguments relate to the purported tension

between 18 U.S.C. § 3553(a)—which requires a district court to “impose a

sentence sufficient, but not greater than necessary” and to consider various

case-specific factors, including “the need to avoid unwarranted sentence

disparities” among similarly situated defendants—and § 3553(f) insofar as it

establishes fixed criteria for avoiding the application of a statutory minimum

sentence. We have previously considered and rejected this line of attack. See

United States v. Wipf, 620 F.3d 1168, 1170–71 (9th Cir. 2010). Moreover, the

district court did consider the § 3553(a) factors and concluded that the ten-year

sentence would be appropriate even without the mandatory minimum.

      AFFIRMED.




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