                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JAN 8 2001
.

                                  TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,
                Plaintiff - Appellee,                     No. 99-4184
    v.                                               (D.C. No. 99-CR-107)
    QUINTIN ADKINS,                                         (D. Utah)
                Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and ANDERSON, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

         Defendant pled guilty to multiple counts of possession of illegal drugs with

intent to distribute. He reserved the right to appeal the denial of his motion to

suppress the evidence.



       This order and judgment is not binding precedent, except under the
         *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      In a related appeal by his co-defendant, Mr. Clarence Phillips, we reviewed

and rejected the motion to suppress. See United States v. Phillips, No. 99-4181

(10th Cir. filed January 8, 2001). Although Defendant makes a more extensive

argument than did his co-defendant, nothing here dissuades us from the

conclusion we reached in that case. We therefore do not revisit those arguments.

      Defendant, however, makes an additional argument regarding the

suppression motion not expressly made by his co-defendant, Mr. Phillips.

Defendant asserts that the magistrate judge abused his discretion and denied

Defendant equal protection by prohibiting proffered testimony about the arresting

officer’s alleged history of pretextual stops based on the race of the defendants.

The defendant relies on Whren v. United States, 517 U.S. 806 (1996). Whren

does note that the selective enforcement of the law through practices like racial

profiling violates the Constitution. See Whren, 517 U.S. at 813. Such a claim is

appropriately brought under the Equal Protection Clause. See id. However, as

Whren makes perfectly clear, the fact that Defendant may have an equal

protection claim against the arresting officer has absolutely no bearing on whether

the officer’s traffic stop was reasonable under the Fourth Amendment. See id.,

United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en banc), cert.

denied, 518 U.S. 1007 (1996). So long as the traffic stop was objectively

reasonable, the officer’s subjective motivations are irrelevant. The magistrate


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judge correctly concluded as much, and therefore barred the proffered testimony.

      Defendant also appeals the trial court’s refusal to dismiss a previous

indictment in this case with prejudice. There is some ambiguity in the record

whether Defendant properly preserved that issue. In any event, we conclude that

the trial court carefully considered all the relevant factors in its decision and did

not abuse its discretion. See United States v. Saltzman, 984 F.2d 1087, 1092

(10th Cir. 1993).

      The final issue is whether Defendant was properly sentenced as a career

offender. The government properly concedes that he was not.

      We affirm the conviction and sentence except for the part of the sentence

attributable to career offender status. We remand to the trial court for re-

sentencing.

      AFFIRMED in part, REVERSED in part, and REMANDED for re-

sentencing.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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