           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          October 9, 2007

                                       No. 06-41321                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ELISEO HINOJOSA-ECHAVARRIA

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                for the Southern District of Texas, Laredo Division
                               USDC No. L-06-184


Before JONES, Chief Judge, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Eliseo Hinojosa-Echavarria (Hinojosa) pled guilty to
possession with intent to distribute more than five kilograms of cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), reserving the right to appeal the
denial of his motion to suppress. He was sentenced to 70 months imprisonment.
On appeal, Hinojosa challenges the district court’s denial of his motion to
suppress and the reasonableness of his sentence. We hold that the district court



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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properly denied the motion. Furthermore, Hinojosa has failed to overcome the
presumption that his sentence was reasonable. We affirm.
                                I. Factual Background
       Oscar Trevino (Agent Trevino) is a senior Border Patrol agent assigned to
the Laredo North Border Patrol station (Laredo North) in Laredo, Texas. The
Laredo North station is located 15 miles north of Laredo on I-35. The primary
purpose of the Laredo North checkpoint is to intercept illegal aliens. Agent
Trevino has been stationed at the Laredo North location for the five years he has
been employed as a Border Patrol agent.
       On January 13, 2006, Agent Trevino was working at the Laredo North
checkpoint when a Ford F-150 truck with Mexican license plates entered the
primary inspection lane. Hinojosa was the driver and sole occupant of the truck.
Agent Trevino first asked Hinojosa whether he was a United States citizen.
Hinojosa provided no verbal response,1 but handed Agent Trevino an I-94 visa.2
Hinojosa’s I-94 visa was stamped “B(2)”, indicating that he was entering the
United States for tourist purposes. Hinojosa concedes that his I-94 visa allowed
entry for tourist purposes only. In order to determine whether Hinojosa was in
compliance with the stated purpose on his visa, Agent Trevino asked Hinojosa
questions to determine whether he was entering the United States for tourist
purposes.
       Agent Trevino first asked Hinojosa his intended destination, to which
Hinojosa answered, “Houston.” Next, Agent Trevino asked Hinojosa the reason


       1
        Agent Trevino asked the initial question in English, however, because Hinojosa did
not verbally respond, Agent Trevino conducted the remainder of the inspection in Spanish.
       2
         At the suppression hearing, Agent Trevino testified to the following: (1) In order to
travel further than 25 miles from the United States-Mexico border, an individual must have
an I-94 visa; (2) The I-94 visa is stamped either “B(1)” or “B(2)” to indicate the purpose of the
individual’s travel; (3) A B(1) stamp allows a person to temporarily enter the United States for
business purposes; and (4) A B(2) stamp allows a person to temporarily enter the United States
for tourist purposes.

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for his visit to Houston. Hinojosa stated that he was going to “pick up a truck.”
After he conducted a visual inspection of the truck and noticed that Hinojosa did
not have any towing equipment, Agent Trevino asked Hinojosa how he was going
to transport the truck back to Mexico. Hinojosa responded that he was going to
tow the truck back. Agent Trevino noted that, during his visual inspection,
Hinojosa became nervous. Agent Trevino asked how Hinojosa planned to tow the
truck back without any towing equipment. Hinojosa indicated that he would
purchase the equipment at an Auto Zone store located across the street from
where he was going to pick up the truck.
      Because an I-94 visa requires its holder to be employed in their country of
origin, Agent Trevino next asked Hinojosa what he did for a living. Hinojosa
responded that he “bought and sold cars.” Thus, Agent Trevino asked why
Hinojosa did not already have a tow dolly or trailer to transport the vehicle.
Hinojosa did not provide an answer. Rather, Agent Trevino noted, Hinojosa
“began stuttering and got extremely nervous.” At this point, Agent Trevino
referred Hinojosa for a secondary inspection. It is undisputed that the entire
exchange lasted only one to one and one-half minutes.
      At the secondary inspection, Agent Trevino, along with a narcotics and
people sniffing dog, conducted a search of the exterior of Hinojosa’s vehicle. The
dog alerted to the vehicle. Agent Trevino next had the dog conduct a search of
the interior of the vehicle, and the dog again alerted and indicated to the air
conditioning vent located to the right of the steering wheel, in the middle of the
truck. Ultimately, agents found 9.12 kilograms of cocaine in that part of
Hinojosa’s truck.
      On January 31, 2006, a federal grand jury in the Southern District of
Texas, Laredo Division, returned a one-count indictment, charging Hinojosa with
possession with intent to distribute more than five kilograms of cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). On February 17, 2006, Hinojosa


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filed a motion to suppress the cocaine seized from his vehicle. The district court
conducted an evidentiary hearing and denied the motion on March 30, 2006. On
April 12, 2006, the district court approved a conditional plea agreement which
preserved Hinojosa’s right to appeal the denial of his motion to suppress.
Hinojosa was sentenced on August 16, 2006, to 70 months imprisonment, a five
year term of supervised release, and a mandatory special assessment of $100.00.
On August 21, 2006, Hinojosa timely filed his notice of appeal with this court.
                                 II. Discussion
                             A. Standard of Review
      This court reviews the district court’s factual findings regarding a motion
to suppress for clear error and its legal conclusions de novo. United States v.
Portillo-Aguirre, 311 F.3d 647, 651-52 (5th Cir. 2002). When the facts are
undisputed, questions regarding probable cause and reasonable suspicion are
resolved as questions of law. Id. at 652. This court views the evidence in the light
most favorable to the party that prevailed in the district court. United States v.
Ellis, 330 F.3d 677, 679 (5th Cir. 2003).
      We review a district court’s interpretation and application of the
sentencing guidelines de novo and factual findings for clear error. United States
v. Villanueva, 408 F.3d 193, 202, 203 & n.9 (5th Cir. 2005).
                            B. Detention of Hinojosa
      The Fourth Amendment provides that “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated.” U.S. CONST. amend. IV. “A search
or seizure is ordinarily unreasonable in the absence of individualized suspicion
of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000).
However, the Supreme Court has upheld the constitutionality of permanent
immigration checkpoints. United States v. Martinez-Fuerte, 428 U.S. 543, 566
(1976). Border Patrol agents stationed at a permanent checkpoint may stop a

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vehicle, question its occupants about citizenship, and conduct a visual inspection
of the vehicle without any individualized suspicion that the vehicle or its
occupants are involved in a crime. Id. at 558-61.
      “To determine the lawfulness of a stop, we ask whether the seizure
exceeded its permissible duration. We look to the scope of the stop in order to
determine its permissible duration.” United States v. Machuca-Barrera, 261 F.3d
425, 432 (5th Cir. 2001). The scope of an immigration checkpoint stop is limited
to determining the citizenship status of persons passing through the checkpoint.
Id. at 433. “This would include the time necessary to ascertain the number and
identity of the occupants of the vehicle, inquire about citizenship status, request
identification or other proof of citizenship, and request consent to extend the
detention.” Id.
      “An officer may ask questions outside the scope of the stop, but only so
long as such questions do not extend the duration of the stop. It is the length of
the detention, not the questions asked, that makes a specific stop unreasonable
. . . .” Id. at 432; United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993)
(“[W]e reject any notion that a police officer’s questioning, even on a subject
unrelated to the purpose of the stop, is itself a Fourth Amendment violation.”).
“So long as a checkpoint is validly created, policing the duration of the stop is the
most practical enforcing discipline of purpose.” Machuca-Barrera, 261 F.3d at
434. In Machuca-Barrera, this court found that a stop lasting “only a couple of
minutes” was within the permissible duration of an immigration checkpoint
stop. Id. at 435.
      The parties do not contest that Hinojosa’s initial stop lasted no longer than
one to one and one half minutes. Because this is within the time approved in
Machuca-Barrera, we find that the initial stop at the primary inspection point
did not exceed the permissible duration of an immigration stop. The relevant



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inquiry, then, is whether Agent Trevino unlawfully extended the stop beyond its
permissible duration when he referred Hinojosa for a secondary inspection.
      “[I]f the initial, routine questioning generates reasonable suspicion of other
criminal activity, the stop may be lengthened to accommodate its new
justification.” Id. at 434. “The key is the rule that a stop may not exceed its
permissible duration unless the officer has reasonable suspicion.” Id. Reasonable
suspicion requires more than a mere unparticularized hunch, but considerably
less than proof by a preponderance of the evidence. United States v. Gonzalez,
190 F.3d 668, 671 (5th Cir. 1999). The relevant inquiry is whether the “totality
of the circumstances” creates a reasonable suspicion of criminal activity. See
United States v. Arvizu, 534 U.S. 266, 273 (2002) (emphasis added).
      Agent Trevino testified that his primary purpose for stopping Hinojosa
became the interdiction of narcotics or alien-smuggling immediately after
Hinojosa failed to respond to his final question regarding Hinojosa’s lack of
proper towing equipment. Our inquiry as to the constitutionality of the stop’s
duration considers only whether Agent Trevino developed reasonable suspicion
prior to this point, thus justifying the need to prolong the encounter. See
Machuca-Barrera 261 F.3d at 435. Based on the testimony of Agent Trevino at
the hearing, the district court did not err in holding that reasonable suspicion
existed to continue the checkpoint stop. The district court found that,
considering Agent Trevino’s five years of experience as a Border Patrol agent, a
variety of factors viewed in totality gave rise to reasonable suspicion of criminal
activity.
      Agent Trevino stated that Hinojosa “began to get a little bit nervous,”
“[h]is voice started cracking a bit,” and that “[h]e couldn’t maintain eye contact”
upon noticing that Agent Trevino was conducting a visual inspection. However,
a generic claim of nervousness alone does not justify the extension of the stop.
Portillo-Aguirre, 311 F.3d at 656 & n.49 (emphasis added).

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      When Hinojosa stated that he did not have towing equipment, Agent
Trevino began to suspect that he was engaging in criminal activity. Agent
Trevino found, in his experience, that it was unusual for Hinojosa to not have
the proper equipment for towing a car from Houston to Mexico. This suspicion
increased when Hinojosa stated that he bought and sold cars for a living. Agent
Trevino further found this inconsistent with the terms of Hinojosa’s I-94 visa.
When he asked his final question -- regarding why Hinojosa did not have his own
towing equipment--Hinojosa did not respond, began stuttering and got extremely
nervous. Agent Trevino testified that Hinojosa’s nervousness was present from
the beginning of the questioning and increased with each additional question
asked. Finally, the district court noted that the Laredo North checkpoint was
located in an area known for the frequency of arrests for narcotics and illegal
aliens. Agent Trevino testified that he made in excess of 400 arrests for narcotics
and 800 arrests for immigration at this particular checkpoint.
      Viewed together, the violation of Hinojosa’s visa, the inconsistencies in his
explanations, his nervousness and stuttering, his failure to respond to Agent
Trevino’s final question, and the high number of narcotics and alien-smuggling
cases occurring at this particular checkpoint, created a reasonable suspicion that
Hinojosa was engaged in criminal activity. Thus Hinojosa was properly referred
for a secondary inspection. We find that Agent Trevino developed reasonable
suspicion during the permissible duration of the routine immigration check, thus
justifying an extension of the stop. For these reasons, we affirm the district
court’s denial of Hinojosa’s motion to suppress.
                   C. Reasonableness of Hinojosa’s Sentence
      The Guidelines range considered by the district court was 70 to 87 months.
The district court imposed a 70 month sentence. Hinojosa’s Guidelines sentence
was properly calculated and is presumed reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Hinojosa fails to make any argument

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demonstrating that the district court’s imposition of his sentence was
unreasonable. Rather, Hinojosa argues that his sentence was unreasonable as
a matter of law, recognizing that the bases for these arguments are foreclosed
under current Fifth Circuit precedent.3 As such, we affirm the district court’s
sentence.


For the foregoing reasons, the defendant’s conviction and sentence are
AFFIRMED.




       3
        Hinojosa raises multiple arguments regarding the advisory nature of the Guidelines
and current issues currently on certification before the Supreme Court. See United States v.
Gall, 446 F.3d 884 (8th Cir. 2006), cert. granted ___ U.S. ____, 2007 WL 1660978 (U.S. June
11, 2007) (No. 06-7949); United States v. Kimbrough, 174 F. App’x 798 (4th Cir. 2006), cert.
granted ___ U.S. ___ 2007 WL 1660997 (U.S. June 11, 2007) (No. 06-6330). However, he
acknowledges that current Supreme Court and Fifth Circuit precedent precludes these
arguments and raises the issues for the purpose of preserving them for possible further review.

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