                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2619
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa
Jorge Granillo,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: December 10, 2001

                                  Filed: May 2, 2002
                                   ___________

Before McMILLIAN and MURPHY, Circuit Judges, and BATTEY,1 District Judge.
                          ___________

McMILLIAN, Circuit Judge.

       Jorge Granillo (defendant) appeals from a final judgment entered in the United
States District Court2 for the Southern District of Iowa upon a jury verdict finding
him guilty of conspiracy to distribute methamphetamine, possession with intent to
distribute methamphetamine, and illegal re-entry into the United States. Defendant

      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
was sentenced to life imprisonment and ten years of supervised release, and he was
ordered to pay $300.00 in special assessments and, if deported from the United States,
not to return without authorization. United States v. Granillo, 4:00-CR-94 (S.D. Iowa
June 20, 2001) (judgment). For reversal, defendant argues that the district court
(1) abused its discretion in denying his motion for a transfer of venue, (2) erred in
denying his motion to suppress evidence obtained as a result of an investigatory stop,
(3) erred in denying his motion to suppress his confession, and (4) erred in enhancing
his sentence based upon prior drug-related convictions. For the reasons stated below
and pursuant to 8th Cir. R. 47B, we affirm the judgment of the district court.

      Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.
Jurisdiction in this court is proper based upon 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). The notice of appeal was timely filed pursuant to Fed. R. App. P. 4(b).

       Defendant was indicted in the Southern District of Iowa on December 15,
1999, on a charge of illegal re-entry into the United States, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2), and he was additionally indicted on April 11, 2000, on
charges of conspiracy to distribute methamphetamine and possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 821(a),
(b)(1)(A) and 826. He was subsequently charged in a superseding indictment
consolidating the illegal re-entry count and the two drug-related counts. The drug-
related charges were based upon the discovery of methamphetamine in a hotel room
where defendant had been staying in Des Moines, Iowa, and his related confession.

       On August 4, 2000, defendant moved for a change of venue pursuant to Fed. R.
Crim. P. 21, arguing that Hispanics would not be adequately represented on his jury,
in violation of his right to a trial by a jury of his peers. The district court denied the
motion on August 28, 2000.




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      On October 3, 2000, defendant filed a motion to suppress evidence on the
ground that, prior to his arrest, he was stopped by the police without reasonable
suspicion, in violation of his Fourth Amendment rights. The district court held a
suppression hearing, and made the following findings of fact.3 See United States v.
Granillo, slip op. at 1-3 (Nov. 9, 2000).

       At approximately 8:30 a.m., on November 23, 1999, Officer Lonnie Namanny
of the Des Moines Police Department was on duty looking for cars in the Des Moines
area with “source state” license plates,4 when he observed a 1997 tan Toyota Camry
with California license plates parked in a Motel Six parking lot. Namanny
determined that the car had been rented in California, and he decided to conduct
surveillance. At approximately 9:00 a.m., Namanny observed the car leave the
parking lot, but he was unable to follow it. Later that day, at approximately
4:30 p.m., Namanny observed the same rental car traveling south on East Fourteenth
Street in Des Moines. He and the two other officers with whom he was working at
the time decided to follow the rental car. The officers were in plain clothes and
traveling in an unmarked car. While they were following the rental car, they observed
it make at least two direction changes en route to a house on Second Avenue, stay at
the house for about twenty minutes, and then return to the Motel Six where Namanny
had observed it earlier that day. The driver parked the rental car in the lot and,
together with the passenger, exited the car. At that time, Namanny and the two other
officers approached the two men. Namanny recognized the driver, defendant, whom

      3
        At the suppression hearing, defendant took the position that only the events
prior to and including the point at which the officers initially approached and spoke
to him were relevant to his Fourth Amendment reasonable suspicion argument. The
district court limited its consideration of the evidence and its findings of fact
accordingly. See United States v. Granillo, No.4:00-CR-94, slip op. at 3 n.3 (S.D.
Iowa Nov. 9, 2000).
      4
        Officer Namanny testified at the suppression hearing that he defines “source
states” to include California, Arizona, and Texas. See id. at 2.
                                         -3-
Namanny had arrested a few years earlier on a narcotics violation. The officers
identified themselves, and Namanny asked defendant for identification. Defendant
produced an Arizona identification card with the false name “Arturo” Granillo and
stated that he did not have a driver’s license. Thereafter, officers searched the rental
car and the motel room where defendant had been staying, where they found
methamphetamine. Based upon these findings of fact, the district court concluded
that defendant had not been “seized” for Fourth Amendment purposes within the
relevant time frame. See id. at 7. The district court emphasized that the officers were
not in uniform or traveling in a marked police car, they did not touch defendant or his
companion, and they did not draw their guns. Moreover, notwithstanding Officer
Namanny’s “brash attitude” at the suppression hearing, the district court noted that
there was no evidence suggesting that – at the time Namanny asked defendant for
identification in the parking lot – he used language or a tone of voice indicating that
compliance might be compelled. See id. at 6 & n.4. The district court denied
defendant’s motion to suppress. See id. at 7.

       Thereafter, defendant moved to suppress the confession he had given after his
arrest, arguing that his confession was induced by promises of leniency and threats
of prosecution and was therefore involuntary. The district court held another
suppression hearing and found, among other things, that: defendant had been given
a Miranda warning both verbally and in writing prior to his confession; he signed the
written form waiving his Miranda rights; the English language was not a barrier to
his understanding of his Miranda rights or his knowing and voluntary waiver of those
rights; he had prior experience with the law enforcement; Namanny truthfully
promised that he would not contact the INS and that he would inform any relevant
prosecutor of defendant’s cooperation; Namanny did not make any promises
concerning where charges would be brought; and defendant not only confessed to his
involvement in the possession and distribution of methamphetamine, but also
cooperated with the officers by setting up others with whom he was involved in the
drug trade. See id., slip op. at 1-6 & nn. 1 & 2 (Jan. 2, 2001). Based upon these

                                          -4-
findings, the district court concluded that defendant’s confession was voluntary and
denied defendant’s second motion to suppress. See id. at 6-7.

       The case proceeded to trial on April 2, 2001. The jury returned a guilty verdict
on all three counts in the indictment on April 3, 2001. At his sentencing hearing on
June 20, 2001, defendant argued that, for purposes of applying the penalty
enhancements under 21 U.S.C. § 841(b)(1)(A),5 the district court could not use his
1996 felony drug-related conviction, which he claimed was based upon an
involuntary guilty plea resulting from ineffective assistance of counsel. Upon
consideration of extensive testimony by defendant, as well as the full record from the
1996 criminal case, the district court concluded that the prior conviction was properly
entered based upon defendant’s voluntary guilty plea and not the result of ineffective
assistance of counsel. See Sentencing Transcript at 3-54 (June 20, 2001).6 The
district court sentenced defendant to mandatory life imprisonment on the two drug-



      5
         21 U.S.C. § 841(b)(1)(A) provides in relevant part: “[i]f any person commits
a violation of this subparagraph . . . after two or more prior convictions for a felony
drug offense have become final, such person shall be sentenced to a mandatory term
of life imprisonment without release.”
      6
        The district court essentially held that, even assuming the truth of defendant’s
allegations (which had significant credibility problems), defendant had not been
prejudiced by his attorney’s allegedly defective representation. The district court
explained:

      I find Judge Vietor [the judge presiding in the 1996 criminal case] was
      extremely thorough and careful and did everything he could to protect
      the Defendant’s rights. [Judge Vietor] made it clear to [defendant] that
      he was not required to plead guilty, it was his choice. And basically the
      Defendant in testifying today is telling this Court he lied to Judge Vietor
      while he was under oath. That really damages his credibility before me.

Sentencing Transcript at 53 (June 20, 2001).
                                          -5-
related counts and twenty years imprisonment on the illegal re-entry count, to run
concurrently. Defendant timely appealed.

       Defendant first argues that the district court abused its discretion in denying his
request for a change of venue based upon the under representation of Hispanics in the
Southern District of Iowa. Notwithstanding defendant’s evidence suggesting that
Hispanics comprise a small portion of the population in the state of Iowa, defendant
did not present evidence indicating that his ethnic background would prevent jurors
from being fair and impartial or that Hispanics were otherwise the target of
purposeful discrimination in the jury selection process within the Southern District
of Iowa. We therefore hold that the district court did not abuse its discretion in
denying defendant’s request for a change of venue. Cf. United States v. Garcia, 836
F.2d 385, 388 (8th Cir. 1987) (rejecting the defendant’s challenge to his conviction on
the ground that the lack of Mexican-Americans on his jury violated his equal
protection rights, where the defendant “gave the court no reason to conclude that lack
of significant number of Mexican-Americans on his venire was anything other than
the innocent result of a lack of a significant number of Mexican-Americans in the
community from which the venire was drawn”).

       Defendant next argues that the district court erred in denying his motion to
suppress evidence obtained as a result of the investigatory stop in the Motel Six
parking lot. Citing United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971) (Nicholas),
defendant argues that a Fourth Amendment seizure occurred as soon as the officers
approached defendant and asked to see his identification, and that the seizure was not
justified by reasonable suspicion as required by Terry v. Ohio, 392 U.S. 1 (1968).
Upon review, we cannot say that any of the district court’s pertinent findings of fact
are clearly erroneous. Based upon those findings, and consistent with post-Nicholas
case law, we agree with the district court that no Fourth Amendment seizure had
occurred as of the time the officers approached defendant and asked for identification.
See, e.g., United States v. Mendenhall, 446 U.S. 544, 553-55 (1980) (seizure occurs

                                           -6-
when person’s freedom of movement is restrained by means of physical force or a
show of authority). We therefore hold that the district court did not err in denying
defendant’s first motion to suppress.

       Defendant further argues that the district court erred in denying his motion to
suppress his confession, which he claims was involuntary. Upon review, we again
perceive no clear error in the district court’s pertinent findings of fact. We agree with
the district court’s conclusion that defendant knowingly and intelligently waived his
Miranda rights and that Officer Namanny did not make any threats or promises that
would have rendered defendant’s confession involuntary. Accordingly, we hold that
the district court did not err in denying defendant’s second motion to suppress.

       Finally, defendant argues that the district court erred in sentencing him to a
mandatory term of life imprisonment under 21 U.S.C. § 841(b)(1)(A). Defendant
maintains that his 1996 drug-related felony conviction was based upon an invalid
guilty plea – the product of ineffective assistance of counsel. Under 21 U.S.C.
§ 851(c)(2), a defendant may challenge the use of a prior conviction for sentencing
purposes by timely raising a constitutional challenge to the validity of that prior
conviction. In the present case, defendant timely challenged the validity of his 1996
predicate conviction. However, upon review of the district court’s thorough
consideration of this issue at the sentencing hearing, we agree with the district court
that defendant failed to show that his prior conviction was the result of ineffective
assistance of counsel under the constitutional standards in Strickland v. Washington,
466 U.S. 668 (1984). See Sentencing Transcript at 3-54. We therefore hold that the
district court did not err in sentencing defendant to a mandatory term of life
imprisonment under 21 U.S.C. § 841(b)(1)(A).

      The judgment of the district court is affirmed. See 8th Cir. R. 47B.




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A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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