                                                                           FILED
                           NOT FOR PUBLICATION                              APR 05 2011

                                                                        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. 09-50418

              Plaintiff - Appellee,              D.C. No. 2:08-cr-01281-AHM-1

  v.
                                                 MEMORANDUM *
JUAN APARICIO-LOPEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                     Argued and Submitted November 5, 2010
                              Pasadena, California

Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT,
District Judge.**

       1.    The district court properly denied the motion to suppress filed by

Defendant-Appellant Juan Aparicio-Lopez (Aparicio-Lopez). The Border Patrol

Agent had reasonable suspicion for the initial traffic stop. The agent observed

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable J. Michael Seabright, United States District Judge for
the District of Hawaii, sitting by designation.
Aparicio-Lopez’s evasive slowing behavior, extremely nervous appearance, his

vehicle’s type and Baja license plates, and the time he crossed the checkpoint.

See United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir. 1997) (listing

factors to consider in determining whether a vehicle stop was justified by

reasonable suspicion).

      The initial traffic stop was not unlawfully extended by the agent’s

questioning of Aparicio-Lopez regarding his business in the United States.

The questioning did not unreasonably prolong the duration of the detention, and

therefore required no additional Fourth Amendment justification. See United

States v. Mendez, 476 F.3d 1077, 1080-81 (9th Cir. 2007) (stating that because

“officers’ questioning did not prolong the stop, we are compelled to hold that the

expanded questioning need not have been supported by separate reasonable

suspicion”); see also United States v. Turvin, 517 F.3d 1097, 1099-1100

(9th Cir. 2008) (same).

      The waiting period necessitated by the agent’s call for the K-9 unit did not

transform the investigatory detention into a functional arrest because the agents

“used no threats of force, unnecessary delays, exaggerated displays of authority or

other coercive tactics.” United States v. Torres-Sanchez, 83 F.3d 1123, 1129




                                          2
(9th Cir. 1996), as amended (citations omitted). Moreover, Aparicio-Lopez’s

consent to the canine sniff search justified the additional detention while he and the

agents waited for the K-9 unit to arrive. See United States v. Brignoni-Ponce,

422 U.S. 873, 882-83 (1975) (noting that further detention or search unjustified by

border patrol agents’ reason for initial stop must be based on “consent or probable

cause”) (emphasis added).

      Aparicio-Lopez’s arguments regarding the validity and scope of his consent

were waived because he did not advance them in his motion to suppress before the

district court. See United States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004).




      2.     The district court did not clearly err in denying Aparicio-Lopez’s

request for a safety-valve reduction because, “not later than the time of the

sentencing hearing, [Aparicio-Lopez] ha[d] [not] truthfully provided to the

Government all information and evidence [he] ha[d] concerning the offense . . .”

18 U.S.C. § 3553(f)(5); see also U.S.S.G. § 5C1.2(a)(5).

      United States v. Shrestha, 86 F.3d 935 (9th Cir. 1996), does not compel a

contrary conclusion. Shrestha held that a defendant’s “perjury at trial should [not]

automatically defeat a claim for [safety valve relief][,]” id. at 939-40, and

determined that, although the defendant had perjured himself in his prior


                                           3
testimony, he was entitled to a safety-valve reduction because, before sentencing,

he “appear[ed] to have timely provided the Government with all the information at

his disposal concerning the offense for which he was convicted.” Id. at 939. In

this case, however, the district court found that Aparicio-Lopez appeared to have

proffered incomplete, inconsistent, and untrue information to the government

before sentencing.

      AFFIRMED.




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