     Case: 15-10434      Document: 00513600840        Page: 1     Date Filed: 07/20/2016




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                   No. 15-10434                           United States Court of Appeals

                                 Summary Calendar
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             July 20, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                Plaintiff–Appellee,

versus

JASON H. AGUILERA,

                                                Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:14-CR-80-1




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

      Jason Aguilera pleaded guilty of aiding and abetting possession with



      * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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                                 No. 15-10434

intent to distribute one kilogram or more of heroin in violation of 18 U.S.C. § 2
and 21 U.S.C. § 841(a)(1), (b)(1)(A)(i). The plea was conditional under Federal
Rule of Criminal Procedure 11(a)(2), reserving the right to appeal the denial of
Aguilera’s motion to suppress.

      Aguilera challenges the denial of the motion to suppress. He contends
that his prolonged detention exceeded the scope of the traffic stop and was not
supported by reasonable suspicion. When reviewing a denial of a motion to
suppress, we review factual findings for clear error and the ultimate constitu-
tionality of law enforcement’s action de novo. See Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Pack, 612 F.3d 341, 347 (5th Cir.
2010).

      When Investigator Danny Dawson stopped Aguilera, Aguilera was trav-
eling on I-40, a well-known drug-trafficking corridor, and was coming from
California, where most of Dawson’s thirty or more cases of seized drugs had
originated that year. Dawson observed an open box of laundry detergent and
the sprinklings of detergent on the carpet of the cargo area of Aguilera’s SUV.
Based on his experience, Dawson knew that detergent was used as a masking
agent for the odor of drugs. He also observed a religious shrine on the floor-
board behind the driver’s seat. He had seen that type of shrine used in connec-
tion with drug trafficking. The renter of the SUV was not present, the rental
price was expensive, and, given Aguilera’s stated intention of returning the
SUV to Connecticut, contrary to the rental agreement, the rental price would
likely become even greater. Finally, Aguilera engaged in suspicious behavior
by acting as though he was already under arrest when he was initially pulled
over, exhibiting signs of nervousness and stress, and making statements that,
in Dawson’s experience, seemed intended to divert suspicion. Those factors,
when taken together, demonstrate that Dawson’s detention of Aguilera for only


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                                 No. 15-10434

eleven seconds after the issuance of the warning citation was supported by
reasonable suspicion.    See Pack, 612 F.3d at 361; United States v. Fishel,
467 F.3d 855, 856 (5th Cir. 2006); United States v. Brigham, 382 F.3d 500, 506
(5th Cir. 2004) (en banc).

      Aguilera claims that his consent to search the SUV was involuntary
because it was given after Dawson had issued the warning citation but before
he returned Aguilera’s driver’s license. That argument ignores all of the fac-
tors demonstrating that the consent was voluntary. See United States v. Solis,
299 F.3d 420, 436 (5th Cir. 2002). As stated in the magistrate judge’s report
and recommendation, Dawson was “polite throughout the encounter,” and the
tone of the encounter was conversational. In addition, although Aguilera was
nervous, he was cooperative and complied with each of Dawson’s requests and
volunteered information without being questioned. Moreover, the record does
not indicate that Aguilera’s intelligence level was diminished or impaired. Fin-
ally, given how well the drugs were hidden in the rear, driver’s side door, Agui-
lera could have believed that no incriminating evidence would be found.

      Under the totality of the circumstances, the finding of voluntary consent
is not clearly erroneous. See United States v. Jenson, 462 F.3d 399, 406–07
& n.9 (5th Cir. 2006); Solis, 299 F.3d at 436. Because the search was obtained
during a lawful detention and supported by voluntary consent, the district
court did not err in denying suppression. See Pack, 612 F.3d at 361; Jenson,
462 F.3d at 406–07 & n.9.

      Aguilera also claims that his consent was not an independent act of free
will. Because the consent was not given during an illegal detention, however,
we need not consider that prong of the consent inquiry. See United States v.
Khanalizadeh, 493 F.3d 479, 484 (5th Cir. 2007)



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                                 No. 15-10434

      Aguilera challenges the district court’s refusal to grant him a minor role
adjustment under U.S. Sentencing Guidelines § 3B1.2(b), which provides that
a defendant’s offense level should be decreased by two levels if he “was a minor
participant in [the] criminal activity.” Whether Aguilera was a minor partici-
pant is a factual determination that is reviewed for clear error. United States
v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).

      Aguilera’s notion that he was a minor participant because all he did was
drive the rental vehicle containing the drugs is unavailing. A defendant’s role
“turns upon culpability, not courier status.”       United States v. Buenrostro,
868 F.2d 135, 138 (5th Cir. 1989). Unlike his co-conspirator’s role, Aguilera’s
role as the driver of the SUV containing the drugs was indispensable to the
drug trafficking offense and essential to its success. See id. Aguilera was held
responsible only for the heroin he transported, and when a sentence is based
on activity in which a defendant was actually involved, Section 3B1.2 does not
require a reduction in the base offense level even though the defendant’s activ-
ity in a larger conspiracy may have been minor. See United States v. Atanda,
60 F.3d 196, 199 (5th Cir. 1995).

      There is no error. The judgment is AFFIRMED.




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