                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 26 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-10424

              Plaintiff - Appellee,               D.C. No. 4:10-cr-02104-CKJ-
                                                  DTF-2
  v.

FABIAN LOPEZ,                                     MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Cindy K. Jorgenson, District Judge, Presiding

                     Argued and Submitted September 12, 2012
                               Las Vegas, Nevada

Before: RAWLINSON, BYBEE, and IKUTA, Circuit Judges.

       Fabian Lopez appeals the district court’s denial of his motion to suppress,

and also contends that the district court erred with respect to two jury instructions

and two adjustments under the United States Sentencing Guidelines (USSG). We

affirm.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The factors identified by the district court, including that Lopez’s vehicle

was on a known smuggling route during a shift change at the border checkpoint,

the appearance of the vehicle, Lopez’s nervous demeanor and guilty look towards

the Border Patrol officer, and his unusual garb, considered in light of the Border

Patrol officers’ training and experience, see United States v. Arvizu, 534 U.S. 266,

273–74 (2002), were sufficient for the officers to form a “particularized and

objective basis” for suspecting wrongdoing and justified the stop of the vehicle.

See United States v. Cortez, 449 U.S. 411, 417–18 (1981). The district court

correctly considered the totality of the circumstances, rather than each factor

individually.

      Neither the officers’ observations of the undercarriage of the vehicle, which

was in plain view, nor their “minimally intrusive” application of force by tapping

on the compartment constituted an unlawful search. See United States v. $109,179

in U.S. Currency, 228 F.3d 1080, 1087 (9th Cir. 2000). Such “narrowly tailored”

intrusions for the purpose of “legitimate police investigation” are permissible

under these circumstances. Id. at 1088; see also United States v. White, 766 F.2d

1328, 1331 (9th Cir. 1985). Therefore, the district court did not err in holding that

probable cause existed to search Lopez’s vehicle, given the factors listed above and

the additional evidence that the truck contained an after-market compartment, that


                                          2
the frame rails and drive train of the truck were covered with an unusual splatter of

dirt and concrete, that Lopez’s statements that he had been working at a

construction site were inconsistent with his clean clothes and appearance, and that

Lopez was taking a circuitous route given his stated itinerary. See Illinois v. Gates,

462 U.S. 213, 238 (1983).1

      The district court did not abuse its discretion in declining to give a “mere

presence” instruction, because the government’s case rested on more than just

Lopez’s presence: the government presented evidence that Lopez was the driver of

the truck, that he arguably had possession and control over the truck’s contents,

that he was taking instructions on his cell phone about the checkpoint and the

proper route, and that he told Leon something was inside the truck. See United

States v. Howell, 231 F.3d 615, 629 (9th Cir. 2000). Further, the jury was properly

instructed on all elements of the crime. See id., 231 F.3d at 629. Nor did the district

court err in declining to give a lesser-included offense instruction, because if a jury

found that Lopez was knowingly transporting over 200 kilograms of marijuana, it

could not rationally conclude that it was for personal use and not for delivery. See

United States v. Powell, 932 F.2d 1337, 1342 (9th Cir. 1991).



      1
       Lopez’s contention that he was placed under arrest without probable cause
has no bearing on his motion to suppress, and therefore this issue is not before us.

                                           3
      The district court did not abuse its discretion in declining to adjust Lopez’s

sentence downward for being a minor participant in the criminal activity under

USSG § 3B1.2. The district court correctly compared Lopez’s conduct against all

known participants in the conspiracy rather than against “hypothetical”

participants, see United States v. Rosas, 615 F.3d 1058, 1068 (9th Cir. 2010), in

holding that Lopez’s role was at least that of an average participant.

       Nor did the district court abuse its discretion in declining to make a

downward adjustment for acceptance of responsibility under USSG § 3E1.1. The

district court did not err in giving greater weight to Lopez’s pre-trial statements

and conduct in evaluating whether he merited the downward adjustment, see

United States v. Martinez-Martinez, 369 F.3d 1076, 1090 (9th Cir. 2004); see also

USSG § 3E1.1 cmt. n. 2, and less weight to his later statements at the time of his

pre-sentence interview, see United States v. Nielsen, 371 F.3d 574, 579, 582 (9th

Cir. 2004) (no downward adjustment despite offer of conditional plea in the

absence of any other significant evidence of accepting responsibility); see also

USSG §3E1.1 cmt. n. 1(H) (noting timeliness as a factor).

AFFIRMED.




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