                                                                           FILED
                           NOT FOR PUBLICATION                              APR 30 2010

                                                                        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. 09-10243

              Plaintiff - Appellee,              D.C. No. 3:08-CR-00017-LRH-
                                                 RAM-1
  v.

GERARDO A. CRUZ-CASTRO,                          MEMORANDUM *

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-10244

              Plaintiff - Appellee,              D.C. No. 3:08-CR-00017-LRH-
                                                 RAM-2
  v.

PEDRO A. VELASQUEZ,

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                             Submitted April 12, 2010 **
                              San Francisco, California

Before: NOONAN and CALLAHAN, Circuit Judges, and MARTINEZ, District
Judge.***

      While traveling eastbound on Interstate 80 in Nevada, Appellants Gerardo

Cruz-Castro and Pedro Velasquez were stopped for speeding by Trooper William

Murwin of the Nevada Highway Patrol. During the ensuing encounter, Murwin

obtained Cruz-Castro’s consent to search the vehicle and discovered 220 grams of

cocaine base and 123.5 grams of heroin, for which Appellants were later charged

with possession with intent to distribute. Appellants moved to suppress the

narcotics evidence, and the district court denied their motions after an evidentiary

hearing. Appellants subsequently were convicted by a jury and sentenced to the

mandatory minimum of 10 years of imprisonment. On appeal, they challenge the

denial of their suppression motions, the admission of certain trial testimony, and




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Ricardo S. Martinez, United States District Judge for
the Western District of Washington, sitting by designation.

                                          2
the denial of safety-valve treatment at sentencing. We have jurisdiction pursuant

to 28 U.S.C. § 1291 and 18 U.S.C § 3742, and we affirm.

                              The Suppression Motions

      Appellants raise several arguments contesting the denial of their motions to

suppress. First, Velasquez asserts that there was insufficient evidence to conclude

that the initial traffic stop was lawful. We review de novo whether the facts

adequately support a traffic stop, and we review the district court’s findings of fact

for clear error. United States v. Drake, 543 F.3d 1080, 1087 (9th Cir. 2008). Here,

Trooper Murwin testified that he observed Appellants’ vehicle and estimated its

speed to be approximately 80 miles per hour, which he confirmed using radar. He

also testified that the posted speed limit in the area was 70 miles per hour. No

objection was raised to this testimony. In light of this evidence, we agree with the

district court that the initial stop of the vehicle was lawful. See United States v.

Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006).

      Appellants proceed to argue that the ensuing search of the vehicle rendered

the duration of the traffic stop unreasonable. We review de novo whether a stop

exceeds its proper duration, United States v. Mayo, 394 F.3d 1271, 1276 n.8 (9th

Cir. 2005), inquiring whether law enforcement “pursu[ed] the investigation in a




                                           3
diligent and reasonable manner,” Haynie v. County of Los Angeles, 339 F.3d 1071,

1076 (9th Cir. 2003) (internal quotation marks and citation omitted).

      According to Murwin’s testimony, neither Cruz-Castro nor Velasquez

produced driver’s licenses when prompted, and Cruz-Castro did not have any

money or credit cards in his possession. Cruz-Castro could not explain with

reasonable precision where they were going or whom they were meeting, and he

appeared abnormally nervous—his pulse was visibly protruding from his neck and

his eyes were twitching. Murwin obtained Cruz-Castro’s consent to search the

vehicle, and while searching the trunk Murwin noticed a spilled white powder that

he suspected to be a controlled substance. Murwin proceeded to search the

passenger compartment, opened a backpack behind the passenger seat, and

discovered what appeared to be heroin and cocaine base. By this time, the total

duration of the stop was 16 minutes. In light of the suspicious circumstances that

continued to unfold during the encounter, we conclude that Murwin’s brief

extension of the traffic stop in order to dispel his suspicions was reasonable. See

Mayo, 394 F.3d at 1276 (concluding that “[t]he period of detention was

permissibly extended [to forty minutes] because new grounds for suspicion of

criminal activity continued to unfold”).




                                           4
      Appellants further contend that Murwin unlawfully coerced Cruz-Castro’s

consent to search the vehicle. Whether consent is obtained through coercion

depends on the totality of the circumstances and is a question of fact we review for

clear error. United States v. Enslin, 327 F.3d 788, 792 (9th Cir. 2003). Five

factors are often the focus of this inquiry: (1) whether the suspect was in custody;

(2) whether officers had their guns drawn; (3) whether Miranda warnings were

given; (4) whether the suspect was notified that he or she could refuse consent; and

(5) whether the suspect was told that a search warrant could be obtained. United

States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 2004). When applied to the

facts of this case, the majority of these considerations weigh in favor of

voluntariness, and the additional circumstances noted by Cruz-Castro do not

persuasively suggest that his ability to refuse consent was overborne. The district

court did not clearly err in finding that Cruz-Castro’s consent was voluntary.

      Finally, Appellants argue that the scope of Cruz-Castro’s consent was

limited to the trunk of the vehicle. We review for clear error whether a search fell

within the scope of consent. United States v. Rodriguez-Preciado, 399 F.3d 1118,

1131 (9th Cir. 2005). After learning that Cruz-Castro was the owner of the

vehicle, Murwin testified that he asked Cruz-Castro “if [he] could search the

vehicle” and that Cruz-Castro “sa[id] yes” and stated that Murwin “wouldn’t find


                                           5
anything.” A video of the encounter shows that Murwin searched the trunk of the

vehicle and then indicated to Cruz-Castro that he would proceed to search the

passenger compartment. Murwin testified that he looked in the backseat, saw a

backpack, and motioned to Velasquez that he wanted to look inside. At no point

did Appellants object, and the video indicates that they had ample opportunity to

do so. “Failure to object to the continuation of a vehicle search after giving general

consent to search is properly considered as an indication that the search was within

the scope of the initial consent.” United States v. Cannon, 29 F.3d 472, 477 (9th

Cir. 1994) (internal quotation marks and citation omitted). The district court did

not clearly err in concluding that Cruz-Castro’s consent included the passenger

compartment and closed containers therein.1

                                  Trial Testimony

      Velasquez contests the district court’s decision to allow Murwin to testify

that Velasquez had stated, “I do this because I make more money here than I make

in the Honduras.” Velasquez also challenges the admission of expert testimony

from DEA Special Agent Michael Bakios, who opined regarding whether certain



      1
         To the extent that Velasquez argues that Cruz-Castro’s consent is “not
controlling” as to him, we deem this argument waived since it was raised for the
first time in his reply brief. United States ex rel. Meyer v. Horizon Health Corp.,
565 F.3d 1195, 1199 n.1 (9th Cir. 2009).

                                          6
characteristics of narcotics would indicate that they were intended for distribution.

We review these evidentiary decisions for an abuse of discretion. See United

States v. Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009); see also United

States v. Curtin, 588 F.3d 993, 995 (9th Cir. 2009).

      As to Velasquez’s statement, the probative value of this evidence was

diminished by the language barrier between Velasquez and Murwin and the

ambiguity of the word “this.” These shortcomings, however, do not render the

evidence inadmissible. Cf., e.g., United States v. Warren, 25 F.3d 890, 895 (9th

Cir. 1994); United States v. Eubanks, 591 F.2d 513, 518 (9th Cir. 1979). In light of

the other evidence adduced at trial and the circumstances under which the

statement was made, the jury could permissibly infer from the statement that

Velasquez was engaging in some form of commerce, to wit, narcotics trafficking.

The district court did not abuse its discretion by finding the statement to be

probative of a fact at issue and not substantially outweighed by the risk of unfair

prejudice.

      Regarding Bakios’s testimony, Velasquez asserts that the special agent’s

lack of personal knowledge about the specific narcotics recovered from the vehicle

rendered his testimony irrelevant and unhelpful to the trier of fact. These

arguments are not well-taken; based on his experience, Bakios testified that a


                                           7
person in possession of 220 grams of cocaine base and 123.5 grams of heroin

would likely intend to distribute the narcotics. He also explained the practice of

distributing heroin in 25-gram “pieces” in plastic bags. The jury could readily

apply Bakios’s testimony to determine whether the narcotics in this case were

intended for distribution rather than personal use. The presentation of this

testimony in the form of answers to hypothetical questions did not render it

irrelevant or unhelpful. See United States v. Younger, 398 F.3d 1179, 1190 (9th

Cir. 2005).

                       Safety-Valve Treatment at Sentencing

      Both Cruz-Castro and Velasquez contend that the district court erred in

denying them safety-valve treatment. A defendant has the burden of proving by a

preponderance of the evidence that he or she qualifies for the safety valve, United

States v. Zakharov, 468 F.3d 1171, 1181 (9th Cir. 2006), and we review for clear

error the district court’s factual determination that a particular defendant is

ineligible, United States v. Mejia-Pimental, 477 F.3d 1100, 1103 (9th Cir. 2007).

      The district court denied safety-valve treatment to Cruz-Castro because he

did not demonstrate that he fully debriefed to the government. See 18 U.S.C. §

3553(f)(5). To make this determination, the district court relied on the testimony

of DEA Special Agent Karen Rossi, who had debriefed Cruz-Castro and concluded


                                            8
that he did not divulge his “total knowledge of the transaction.” The district court

also relied on certain evidence presented at trial. Although Bakios had testified

that drug couriers typically know “very, very little,” and Rossi conceded the

“possib[ility]” that Cruz-Castro had acted solely at the direction of Velasquez, this

evidence was far from compelling. The district court did not clearly err in finding

Cruz-Castro ineligible for safety-valve treatment. Furthermore, because Cruz-

Castro received the mandatory minimum sentence, his contentions regarding

minor-role and acceptance-of-responsibility adjustments are moot. See United

States v. VanDoren, 182 F.3d 1077, 1083 (9th Cir. 1999).

      As to Velasquez, he acknowledges that safety-valve treatment is precluded

where a defendant has more than one criminal-history point, see 18 U.S.C. §

3553(f)(1), but contends that the district court “did not ‘charge’ [his] criminal

history points against” him. This argument misinterprets the record; although the

district court found Velasquez’s criminal-history category to overstate the severity

of his prior convictions, the court did not remove Velasquez’s criminal-history

points, nor would it have had authority to do so. See United States v.

Hernandez-Castro, 473 F.3d 1004, 1008 (9th Cir. 2007). The district court

properly denied safety-valve treatment to Velasquez.

      AFFIRMED.


                                           9
