                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50417

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-03938-JLS-1
 v.

GILBERT CARRASCO,                               MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                  Janis L. Sammartino, District Judge, Presiding

                             Submitted May 8, 2020**
                               Pasadena, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and STEIN,*** District
Judge.

      Following a jury trial, Gilbert Carrasco was convicted of one count of

possession with intent to distribute over 500 grams of methamphetamine in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Sidney H. Stein, United States District Judge for the
Southern District of New York, sitting by designation.
violation of 21 U.S.C. § 841(a)(1). On appeal, he challenges the constitutionality of

the permanent Border Patrol checkpoint, the sufficiency of evidence supporting his

conviction, and the admission of statements he made in secondary inspection. We

affirm.

      1.     The district court did not err in upholding the constitutionality of the

Highway 111 Border Patrol checkpoint. Ordinarily, “a search or seizure is

unreasonable unless it rests on individualized suspicion of wrongdoing.” United

States v. Soto-Zuniga, 837 F.3d 992, 998–99 (9th Cir. 2016). However,

individualized suspicion is not necessary “where a program is designed to serve

‘special needs, beyond the normal need for law enforcement.’” United States v.

Fraire, 575 F.3d 929, 931–32 (9th Cir. 2009) (quoting City of Indianapolis v.

Edmond, 531 U.S. 32, 37 (2000)). A permanent checkpoint created for the primary

purpose of immigration control serves a special need. See Soto-Zuniga, 837 F.3d at

999 (citing United States v. Martinez-Fuerte, 428 U.S. 543, 556 (1976)). A district

court’s determination of the primary purpose of a checkpoint is reviewed for clear

error. See United States v. Faulkner, 450 F.3d 466, 470 (9th Cir. 2006).

      Here, the district court reviewed extensive testimony and agency documents1



1
 Carrasco filed an unopposed motion to take judicial notice (Dkt. 19) of transcripts
of testimony and the district court’s ruling in a case addressing a nearby permanent
Border Patrol checkpoint, a printout of a page from the U.S. Customs and Border
Patrol website, and the oral testimony of Border Patrol Chief Mark Morgan. Each

                                          2
that consistently emphasized that the primary purpose of the Highway 111 Border

Patrol checkpoint was “to restrict the routes of egress from the border area and

thereby create deterrence to the initial illegal entry.” Although the agency may

have had other goals in addition to its central mission of interdicting

undocumented immigrants, we cannot conclude that the district court clearly erred

in determining that the primary purpose of the Highway 111 checkpoint was to

intercept undocumented immigrants, rather than to advance a general interest in

crime control.

      2.     There was sufficient evidence to convict Carrasco. In considering a

challenge to the sufficiency of the evidence, we “construe the evidence ‘in the light

most favorable to the prosecution,’ and only then determine whether ‘any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010)

(en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Although we

review de novo, “our evaluation remains deferential and accords respect to the

jury’s role ‘as weigher of the evidence.’” United States v. Moe, 781 F.3d 1120,

1124 (9th Cir. 2015) (quoting Jackson, 443 U.S. at 319).

      Viewing the evidence in the light most favorable to the prosecution, a



is a proper subject of judicial notice. See Fed. R. Evid. 201(b). We grant the
motion.

                                          3
rational juror was entitled to find beyond a reasonable doubt that the packages

contained methamphetamine and that the methamphetamine weighed more than

500 grams. Agents removed the substance taped to Carrasco’s legs and found that

it tested positive for methamphetamine. Before trial, a Drug Enforcement Agency

(DEA) chemist again tested and weighed the substance and determined it contained

843 grams of methamphetamine. Although Carrasco argues that the packages

seized at the checkpoint were not the same as those analyzed in the DEA lab, “[o]n

the record as a whole . . . , there was sufficient other evidence to fill any gap in the

chain of custody[.]” United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012).

      3.     Carrasco’s detention in secondary inspection did not violate the

Fourth Amendment. “At fixed Border Patrol checkpoints within the nation’s

interior, the government can send a motorist for a brief secondary inspection upon

‘a minimal showing of suspicion’ . . . .” United States v. Thomas, 726 F.3d 1086,

1095 (9th Cir. 2013) (quoting United States v. Taylor, 934 F.2d 218, 220–21 (9th

Cir. 1991)). This low threshold was undoubtedly met here. The primary inspection

agent described Carrasco’s responses as “very brief . . . like he didn’t want to talk”

and his overall demeanor as “unusual.” Furthermore, a drug-detection dog twice

alerted to the scent of contraband. Accordingly, Carrasco’s referral and subsequent

detention in secondary inspection was not unlawful.

      4.      We need not determine whether the statements Carrasco made in


                                           4
secondary inspection were admitted in violation of Miranda, because “[e]ven

without the statements . . . , the evidence of guilt was overwhelming.” United

States v. Butler, 249 F.3d 1094, 1101 (9th Cir. 2001). A Border Patrol agent

testified that after Carrasco was arrested and given his Miranda warnings,

Carrasco admitted that he was hired to transport drugs. And, as already noted, the

packages removed from Carrasco’s legs were twice tested and determined to

contain methamphetamine. Accordingly, based on the compelling other evidence

of guilt, any error was “harmless beyond a reasonable doubt.” United States v.

Polanco, 93 F.3d 555, 562–63 (9th Cir. 1996).

      AFFIRMED.




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