                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5020


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LUIS CORCHO SUAREZ,

                  Defendant - Appellant.



                              No. 08-4022


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ERNESTO PRIETO OSORIO,

                  Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge.   (5:06-cr-00049-RLV; 5:06-cr-00049-
RLV-1)


Submitted:    December 23, 2008             Decided:   January 30, 2009


Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Marcia G. Shein, LAW OFFICE OF MARCIA G. SHEIN, P.C., Decatur,
Georgia, for Appellants. Gretchen C. F. Shappert, United States
Attorney,   Adam  Morris,   Assistant  United States  Attorney,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

              Luis    Corcho     Suarez       entered      a   conditional       plea   of

guilty to one count of conspiracy to possess with intent to

distribute at least five kilograms of cocaine, in violation of

21   U.S.C.    §     846   (2006),     and    was    sentenced     to    sixty    months’

imprisonment.         Ernesto Prieto Osorio entered a conditional plea

of guilty to one count of conspiracy to possess with intent to

distribute at least five kilograms of cocaine and one count of

possession with intent to distribute at least five kilograms of

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006), and

was sentenced to the statutory mandatory minimum of 120 months’

imprisonment.        Finding no error, we affirm.

              On   appeal,     Suarez        and    Osorio     contend   the     district

court erred in denying their motions to suppress the cocaine

seized from the vehicle in which they were traveling.                          We review

the court’s factual findings underlying the denial of a motion

to suppress for clear error and its legal conclusions de novo.

United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008).                             The

evidence      is     construed    in    the        light   most   favorable       to    the

prevailing party below.           United States v. Uzenski, 434 F.3d 690,

704 (4th Cir. 2006).

              Suarez and Osorio, who are both Cuban, contend that

the traffic stop initiated by law enforcement was pretextual and

racially motivated.          The Supreme Court “uniformly has held that

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the application of the Fourth Amendment depends on whether the

person     invoking       its    protection         can     claim    a    ‘justifiable,’          a

‘reasonable,’ or a ‘legitimate expectation of privacy’ that has

been invaded by government action.”                          United States v. Knotts,

460 U.S. 276, 280 (1983).                 “A person traveling in an automobile

on public thoroughfares has no reasonable expectation of privacy

in   his   movements       from     one    place       to    another.”          Id.      at    281.

Moreover,    “if     an    officer       has    probable       cause      or    a     reasonable

suspicion to stop a vehicle, there is no intrusion upon the

Fourth Amendment.”              United States v. Hassan El, 5 F.3d 726, 730

(4th Cir. 1993).

             We    have    specifically             rejected      the    test    advanced        by

Appellants, which would require a court to look to the officer’s

subjective motivations in initiating a traffic stop, in favor of

an objective test.               Id.      Thus, “when an officer observes a

traffic     offense       or     other     unlawful         conduct,       he       or   she     is

justified in stopping the vehicle under the Fourth Amendment,”

regardless of whether the officer’s interest in the vehicle was

based on “intuitive suspicions that the occupants of the car

[were] engaged in some sort of criminal activity.”                              Id.

             Here,    the        officer       who    initiated          the    traffic        stop

determined     that       Appellants’       vehicle         was     exceeding         the     speed

limit by thirteen miles per hour.                           Neither Suarez nor Osorio

challenges    the     district         court’s       determination         that       they     were

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speeding.     Instead, they argue that the “inception” of the stop

occurred when officers first determined that the vehicle was

suspicious.        However, until a seizure implicating the Fourth

Amendment has occurred, officers are “not required to have a

‘particularized        and      objective        basis     for        suspecting        [an

individual]    of     criminal       activity,’    in    order        to   pursue      him.”

Michigan v. Chesternut, 486 U.S. 567, 576 (1988) (quoting United

States v. Cortez, 449 U.S. 411, 417-18 (1981)).                        Under the facts

of   this    case,     Appellants       cannot     establish          that     they     were

“seized”     for     Fourth    Amendment        purposes       merely        because    the

officers    determined        that    their    vehicle     was       suspicious.        See

Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968) (stating a seizure

occurs when an “officer, by means of physical force or show of

authority,     has    in     some    way   restrained          the    liberty     of”    an

individual).

            Appellants’        contention       that     the     stop      was   racially

motivated is likewise without merit.                     Allegations of racially

motivated law enforcement implicate the Equal Protection Clause

rather than the Fourth Amendment.                United States v. Bullock, 94

F.3d 896, 899 (4th Cir. 1996).                 The standard for establishing a

selective enforcement claim is “demanding” and requires evidence

that clearly contradicts the presumption that officers have not

violated equal protection.             United States v. Armstrong, 517 U.S.

456, 463-65 (1996); see also Bullock, 94 F.3d at 899 (applying

                                           5
Armstrong in traffic stop case).                 A defendant must therefore

establish      that     the      law       enforcement      practice      “had     a

discriminatory        effect    and       that   it   was     motivated      by   a

discriminatory purpose.”            Armstrong, 517 U.S. at 465.          Moreover,

a defendant must show that the law enforcement practice was not

enforced against “similarly situated individuals of a different

race.”   Id.

            Other     than    contradictory      testimony    on   the   issue    of

whether one officer described Appellants as “black,” there is

nothing in the joint appendix to suggest that race played any

part in the traffic stop.                The district court determined that

even assuming the comment was made, it was merely a descriptor

used to identify the vehicle’s occupants rather than evidence of

improper racial motivation.              Additionally, there is no evidence

in the joint appendix establishing that the officers failed to

stop individuals of other races for exceeding the speed limit by

more than ten miles per hour.

            Suarez and Osorio also contend that the request for

consent to search the vehicle was improper.                   They incorrectly

argue that probable cause is required before an officer may seek

consent to search.       See Schneckloth v. Bustamonte, 412 U.S. 218,

219 (1973) (“[O]ne of the specifically established exceptions to

the   requirements     of    both    a    warrant   and   probable   cause   is   a

search that is conducted pursuant to consent.”).                   Rather, where

                                           6
officers       “lack    probable      cause     to   arrest    or   search,        a   search

authorized by a valid consent may be the only means of obtaining

important        and     reliable        evidence.”        Id.      at     227.         “The

circumstances          that    prompt    the    initial   request        to   search     may

develop       quickly     or    be   a    logical     extension     of     investigative

police questioning.”            Id. at 232.

               In this case, there is no evidence that the officers

used     any     coercive       tactics        in    obtaining      consent.            After

Appellants’ identification cards and vehicle registration were

returned to them, they were informed that they were free to

leave.        Appellants do not allege, and the joint appendix does

not show, that the officers drew their weapons, behaved in an

antagonistic manner, or otherwise informed Suarez or Osorio that

they were under arrest prior to requesting consent to search.

The    totality    of     the    circumstances        therefore      establishes         that

consent was voluntarily rendered.                    See Schneckloth, 412 U.S. at

248-49 (“Voluntariness is a question of fact to be determined

from all the circumstances . . . .”).                         Thus, we conclude the

district court did not err in refusing to suppress the evidence

obtained during the vehicle search.

               Osorio additionally contends that the district court

erred    in    determining       that     he   was    ineligible     for      a   reduction

under     U.S.    Sentencing         Guidelines       Manual     (“USSG”)         § 5C1.2(a)

(2006) (“the safety valve”).                   To qualify for sentencing under

                                               7
the    safety       valve    provision,      a     defendant      must     meet   all   five

criteria       set     forth     in    18     U.S.C.        §    3553(f)      (2006),    and

incorporated          in     USSG     § 5C1.2(a).               The    district    court’s

determination of whether a defendant has satisfied the safety

valve criteria is a question of fact reviewed for clear error.

United States v. Wilson, 114 F.3d 429, 432 (4th Cir. 1997).

               We     have     previously          stated       that   the     “plain    and

unambiguous         language     of    [18     U.S.C.       §    3553(f)(5)]      obligates

defendants       to    demonstrate,         through     affirmative          conduct,   that

they    have     supplied      truthful      information          to   the    Government.”

United States v. Ivester, 75 F.3d 182, 184-85 (4th Cir. 1996).

Such information includes everything the defendant knows about

“the offense or offenses that were part of the same course of

conduct or of a common scheme or plan.”                     USSG § 5C1.2(a)(5).

               The information provided by Osorio was vague and, at

times, contradictory.               Furthermore, a birth certificate issued

in     another       individual’s       name       as   well      as     other    documents

discovered in Osorio’s possession were never fully explained.

Thus, the district court cannot be said to have clearly erred in

determining that Osorio’s provision of “vague, incomplete, and

in     several        aspects,      untruthful”         information          rendered    him

ineligible for the safety valve reduction.

               Accordingly, we affirm the judgments of the district

court.     We dispense with oral argument because the facts and

                                               8
legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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