                                                                                FILED
                            NOT FOR PUBLICATION
                                                                                OCT 24 2019
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   18-10217

              Plaintiff-Appellee,                 D.C. No.
                                                  3:17-cr-00095-WHA-1
 v.

DEAUNTRE MONTGOMERY,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                      Argued and Submitted October 22, 2019
                             San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and BADE, Circuit Judges.

      Deauntre Montgomery appeals his conviction pursuant to 18 U.S.C. §

922(g)(1) for possessing a firearm and ammunition as a convicted felon and,

specifically, the district court’s denial of his motion to suppress a handgun

discovered during a stop and frisk. We affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review reasonable suspicion determinations de novo and the findings of

historical facts underlying that determination for clear error. United States v.

Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013) (en banc) (citation omitted). In

doing so, we afford “due weight to inferences drawn from those facts by resident

judges and local law enforcement officers.” Id. (quotations and citation omitted).

      Defendant concedes that the officers had reasonable suspicion that he had

engaged in criminal activity, justifying his initial detention under Terry v. Ohio,

392 U.S. 1, 27 (1968). He challenges only whether the officers established

reasonable suspicion for the subsequent frisk. We assess the reasonableness of a

Terry frisk under the totality of the circumstances. United States v. Arvizu, 534

U.S. 266, 273 (2002).

      Here, the district court identified a number of factors supporting the frisk,

the most important of which was the two officers’ testimony that the defendant’s

hand and arm movements led them to independently and simultaneously suspect

that the defendant was concealing contraband or a weapon. The district court

credited their testimony, noting that the differences in their descriptions of the

defendant’s actions did not make their testimony unreliable. Rather, the court

credited the officers’ independent and simultaneous conclusions that the movement

they saw appeared suspicious and indicated concealment of a weapon or


                                           2
contraband in the defendant’s waistband. This factor, coupled with the other

factors cited by the district court, justified its conclusion that there was reasonable

suspicion for the frisk under the totality of the circumstances. Given the record

and the deference we owe to the inferences drawn by the district court and the on-

scene officers, see Vales-Vegas, 738 F.3d at 1077, there was no reversible error in

the district court’s decision to deny the suppression motion.

      AFFIRMED.




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