                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               DEC 19 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-30050

              Plaintiff-Appellee,                D.C. No.
                                                 1:14-cr-00088-SPW-1
 v.

LESTER PINEX III, AKA Lester Johnson,            MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Susan P. Watters, District Judge, Presiding

                       Argued and Submitted October 2, 2017
                                Portland, Oregon

Before: PAEZ and BEA, Circuit Judges, and LAMBERTH,** District Judge.

      Lester Pinex appeals the district court’s denial of his motion to suppress

evidence and the district court’s application of the four-level sentencing

enhancement under U.S.S.G § 2K2.1(b)(6). We affirm in part and reverse in part.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
1.     Pinex moved to suppress the seizure of heroin, alleging that the traffic stop

was prolonged without reasonable suspicion of criminal activity in violation of the

Fourth Amendment. We review “de novo a district court’s legal conclusions

regarding the denial of a motion to suppress.” United States v. I.E.V., 705 F.3d

430, 434 (9th Cir. 2012).

       In Rodriguez v. United States, 135 S. Ct. 1609 (2015), the Supreme Court

held that “a police stop exceeding the time needed to handle the matter for which

the stop was made violates the Constitution’s shield against unreasonable

seizures.” Id. at 1612. A prolonged stop is unconstitutional if it both exceeds the

time needed for the initial purpose of the stop and there is no independent

reasonable suspicion to allow the police to extend the length of the stop. Id. In

other words, “[a]uthority for the seizure . . . ends . . . when tasks tied to the traffic

infraction are—or reasonably should have been—completed.” United States v.

Evans, 786 F.3d 779, 786 (9th Cir. 2015). If during a traffic stop, “new grounds

for suspicion of criminal activity continue[] to unfold,” the period of the detention

can be constitutionally extended. United States v. Mayo, 394 F.3d 1271, 1275 (9th

Cir. 2005) (internal quotation marks omitted). In this case, given the totality of the

circumstances, as events unfolded the police officers had reasonable suspicion to

believe that criminal activity was afoot.


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      Pinex was pulled over for speeding, which the parties do not dispute was a

valid traffic stop. The question is whether that stop—which lasted nearly two

hours—was prolonged without reasonable suspicion that Pinex was involved in

criminal activity. See id. At the beginning of the stop, Pinex provided the officers

with a rental car agreement, that showed the car he was driving had been rented to

a third party, who was not present. The stop took place on I-94, which law

enforcement officers consider a “drug corridor.”

      Additionally, Pinex gave the officers a false name, social security number,

and date of birth, none of which returned a positive identification of Pinex when

one of the officers tried to run the information through available databases. The

fact that Pinex’s identity could not be confirmed and that the rental car had been

rented to another person prompted the officers to question separately Pinex and his

passenger Deangelo Tyler. After speaking with Pinex and Tyler, the officers

noticed inconsistencies in the information they provided. In subsequent

conversations with the rental car company the officers learned that Pinex had lied

about the whereabouts of the third party named in the rental agreement, and the

company authorized a search of the car and requested that it be impounded.

Although the officers called for a tow truck, given its location there was delay in its

arrival at the scene. As these facts evolved, the officers reasonably suspected that


                                           3
Pinex was involved in drug trafficking. This independent basis for reasonable

suspicion amply supported the officers decision to prolong the stop and call for a

drug dog. Given the totality of the circumstances, the prolonged traffic stop was

supported by reasonable suspicion that criminal activity was afoot. We therefore

affirm the district court’s denial of Pinex’s motion to suppress evidence.

2.    Pinex also challenges the application of the four-level sentencing

enhancement under U.S.S.C. § 2K2.1(b)(6). We review “the district court’s

interpretation of the Sentencing Guidelines de novo, the district court’s application

of the Sentencing Guidelines to the facts of [a] case for abuse of discretion, and the

district court’s factual findings for clear error.” United States v. Cantrell, 433 F.3d

1269, 1279 (9th Cir. 2006) (quoting United States v. Kimbrew, 406 F.3d 1149,

1151 (9th Cir. 2005)).

      In relevant part, the four-level enhancement applies when the defendant

“used or possessed any firearm or ammunition in connection with another felony

offense.” U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(b)(6)(B) (2016).

Application Note 14(A) explains that “[s]ubsection[ ] (b)(6)(B) . . . [applies] if the

firearm or ammunition facilitated, or had the potential of facilitating, another

felony offense or another offense, respectively.” This contrasts with the directive

in Application Note 14(B) that subsection (b)(6)(B) applies “in the case of a drug


                                           4
trafficking offense in which a firearm is found in close proximity to drugs, drug-

manufacturing materials, or drug paraphernalia.” As the note explains, “[i]n these

cases, application of subsections (b)(6)(B) . . . is warranted because the presence of

the firearm has the potential of facilitating another felony offense or another

offense, respectively.”

      The district court concluded that the gun “played an emboldening role in

[Pinex’s] criminal possession of those drugs,” and therefore applied the

enhancement. In doing so, the district court noted that although the gun and drugs

were in separate containers, they were in close proximity and that Pinex spoke of

the drugs and gun at the same time, thereby suggesting that in his mind they were

related. Because the other felony offense here was not a drug trafficking crime, we

look to Application Note 14(A) for guidance.

      When the other felony offense is not a drug trafficking crime, we have held

that accessibility is a central factor in determining whether the section 2K2.1(b)(6)

enhancement should apply. United States v. Routon, 25 F.3d 815, 819 (9th Cir.

1994). In United States v. Routon, which involved a felony possession of a stolen

vehicle, we acknowledged that the enhancement may apply if possession of the

firearm “had some potential emboldening role in[] a defendant’s felonious

conduct.” Id. This emboldening role was in turn sufficient to permit a finding of


                                           5
“facilitation,” whereas mere possession was not. Key to the determination that the

gun emboldened Routon’s conduct was the fact that it was easily accessible.

“Routon’s apparent efforts to maintain the accessibility of his gun whenever he

used his car permit the inference that the gun emboldened him to continue his

illegal conduct.” Id. (emphasis added). Although the other criminal offense in

Routon was possession of a stolen vehicle rather than possession of drugs, the

same principles apply, as Application Note 14(A) provides guidance for each.

       Here, the gun was not accessible to Pinex. Indeed, it was in a locked

suitcase in the trunk of his car. He could not gain access to the gun without

significant effort given its location in the trunk. This lack of accessibility contrasts

with Routon, where the gun was in the front of the car between the driver and

passenger seats. The fact that the gun and the drugs were both in the trunk does

not support the district court’s finding that the gun emboldened Pinex’s possession

of the drugs. The district court erred by focusing on proximity rather than

accessibility.

       For the above reasons the district court’s denial of Pinex’s motion to

suppress evidence is affirmed. And the district court’s application of U.S.S.G. §

2K2.1(b)(6) four- level sentencing enhancement is reversed and the case is

remanded for resentencing.


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     AFFIRMED in part; REVERSED in part and REMANDED for

resentencing.




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