                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-14904                ELEVENTH CIRCUIT
                                                             APRIL 28, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                    D. C. Docket No. 09-00015-CR-CG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JUAN CASTELAN-BENITEZ,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                      _________________________

                              (April 28, 2010)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Juan Castelan-Benitez appeals his conviction for conspiracy to possess

cocaine with the intent to distribute, in violation of 21 U.S.C. § 846 and 18 U.S.C.

§ 2. On appeal, Castelan-Benitez argues that: (1) the district court erred in denying

his motion to suppress cocaine obtained during a traffic stop because no reasonable

suspicion existed for the officer to extend the stop; (2) the evidence was

insufficient to convict him of conspiracy to possess cocaine with the intent to

distribute; and (3) the district court abused its discretion in refusing to admit

evidence of the prior convictions and the guilty plea of coconspirator Mario Lopez.

                                            I.

      The district court denied Castelan-Benitez’s motion to suppress the cocaine

because it found that the officer had a reasonable suspicion to extend the stop even

after he issued a Castelan-Benitez a warning. The district court concluded that

Castelan-Benitez and Lopez’s extreme nervousness and a suspiciously placed air

freshener, both of which the officer had been trained to notice, provided the officer

with the requisite suspicion to continue the investigation. It was this continued

investigation that ultimately led to the discovery of the hidden cocaine.

      In reviewing a district court’s ruling on a motion to suppress, we review the

court’s factual findings for clear error and the application of the law to those facts

de novo. United States v. Newsome, 475 F.3d 1221, 1223 (11th Cir. 2007). We



                                            2
construe the facts in the light most favorable to the prevailing party, in this case,

the Government. See id. at 1223–24.

      Traffic stops are seizures within the meaning of the Fourth Amendment, and,

ordinarily, they may last no longer than necessary to process the traffic violation.

United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). An exception to

this rule applies, however, when the officer has an articulable suspicion of other

illegal activity. Id. In such a case, the officer may extend the traffic stop.

      Here, as Castelan-Benitez acknowledges, Deputy Clark Bolton stopped the

car after determining that it was following another vehicle too closely. Thus, the

initial stop was for a routine traffic violation. But, as the record shows, Bolton was

legally permitted to continue to investigate, even after he wrote Castelan-Benitez a

warning, because he had a “particularized and objective basis for suspecting legal

wrongdoing.” See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750

(2002) (quotations omitted).

      As Bolton approached the car, he noticed an air freshener located in the rear

cargo area (an unusual place for an air freshener) and he “smelled the strong odor

of the air fresheners in the vehicle.” He noticed that Castelan-Benitez and Lopez

were both breathing rapidly and that they were extraordinarily nervous. These

cues aroused suspicion in Bolton, who testified that during his narcotics training he



                                            3
learned to be particularly aware of the placement of air fresheners, driver and

passenger nervousness, potential concealment in the natural voids of vehicles, and

travel explanations that seem nonsensical. Thus, given his training, Bolton

reasonably suspected that Castelan-Benitez and Lopez may have been involved in

criminal activity and, as such, Bolton permissibly extended the traffic stop. See

Arvizu, 534 U.S. at 273.

      Continuing his investigation, Bolton questioned Lopez regarding the

purpose of the trip, and, when he received a suspicious answer, Bolton requested

permission to search the car. Castelan-Benitez then voluntarily consented to the

search.1 As a result, the remainder of the investigation, including the use of a

search dog to locate the drugs, was constitutionally permissible. See United States

v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989) (holding that a search pursuant to

voluntary consent does not violate the Fourth Amendment’s prohibition on

warrantless searches). Accordingly, because there was no constitutional violation,

the district court properly denied Castelan-Benitez’s motion to suppress the

evidence obtained from the search. See id.




      1
          On appeal, Castelan-Benitez does not contend otherwise.

                                               4
                                            II.

         Castelan-Benitez next argues that the Government’s evidence was

insufficient to convict him of conspiracy to possess cocaine with the intent to

distribute. He admits that he was the owner and driver of the vehicle in which the

cocaine was found, but argues that he had no knowledge of the cocaine’s presence.

We review de novo this challenge to the sufficiency of the evidence, both viewing

the evidence and making all reasonable inferences and credibility choices in the

Government’s favor. See United States v. Wright, 392 F.3d 1269, 1273 (11th Cir.

2004).

         To sustain a conviction for conspiracy to possess with intent to distribute,

the Government must prove beyond a reasonable doubt that: “(1) an illegal

agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” United States v. McDowell, 250 F.3d 1354,

1365 (11th Cir. 2001). Commonly, the government does not prove a defendant’s

participation in a criminal conspiracy by direct evidence, but rather presents

circumstantial evidence from which “a common purpose and plan may be

inferred.” Id. (quotations omitted).

         Here, the Government’s evidence revealed that Castelan-Benitez was driving

and owned the vehicle in which the cocaine was found, thus placing him at the



                                            5
scene of the crime. See United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995)

(“Presence [at the scene of the crime] . . . raises a permissible inference of

participation in the conspiracy.”). Both Castelan-Benitez and Lopez’s behavior

indicated that both men knew the drugs were hidden in the car—the men were

breathing rapidly, Castelan-Benitez’s hands were shaking, and he failed to make

eye-contact with Deputy Bolton. Additionally, Lopez’s bogus explanation of the

trip’s purpose, the hiding and disguising of the drugs, and the presence of

excessive air fresheners all further indicate that the two men were engaged in a

common criminal plan or scheme to transport cocaine, and had gone to significant

lengths to cover their activities. From this circumstantial evidence, a reasonable

jury could have concluded beyond a reasonable doubt that (1) a common plan to

transport cocaine existed, (2) Castelan-Benitez knew of the plan, and (3) Castelan-

Benitez voluntarily participated in that plan by using his car to transport the

cocaine. See McDowell, 250 F.3d at 1365. Thus, the evidence supports

Castelan-Benitez’s conviction for conspiracy to possess cocaine with the intent to

distribute.2




       2
        We note that to sustain the jury’s verdict the evidence need not exclude every
reasonable hypothesis of innocence or be inconsistent with every conclusion except that of guilt.
United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir. 1997).

                                                6
                                          III.

       Third, Castelan-Benitez argues that the district court abused its discretion in

excluding evidence of the prior convictions and guilty plea of coconspirator Lopez.

Castelan-Benitez sought to admit this evidence pursuant to Federal Rule of

Evidence 404(b); we review the district court’s denial of Castelan-Benitez Rule

404(b) motion for abuse of discretion. See United States v. Perez, 443 F.3d 772,

774 (11th Cir. 2006).

       Courts use a three-part test to determine whether evidence is admissible

under Rule 404(b): “(1) the evidence must be relevant to an issue other than the

defendant’s character; (2) there must be sufficient proof so that the factfinder could

find that the defendant committed the extrinsic act; and (3) the evidence must

possess probative value that is not substantially outweighed by undue prejudice.”

Id. at 779.

       Castelan-Benitez contends that this evidence was permissible, as it would

have shown Lopez’s “intent, motive, opportunity, and plan to commit the drug

trafficking offense”—all of which are permissible purposes under Rule 404(b).

But, as the district court determined, the proffered evidence does not serve any of

these permissible purposes. Evidence showing that Lopez had previously been

convicted of drug crimes and that he had pled guilty in this drug case do not shed



                                           7
any light on whether Castelan-Benitez also participated in the conspiracy. In its

discretion, the district court explained that Castelan-Benitez sought to introduce the

evidence of Lopez’s criminal history to imply that “it was the other guy who in

essence was the perpetrator. And so what [Castelan-Benitez] was seeking to have

this jury infer from the fact that the other guy had prior criminal convictions for

drugs is that he was the guy that the drugs belonged to—which is exactly what you

cannot use 404(b) for.”

      In short, Castelan-Benitez failed to demonstrate that the past convictions and

guilty plea were not offered “to prove the character of [Lopez] in order to show

action conformity therewith.” See United States v. Cohen, 888 F.2d 770, 776 (11th

Cir. 1989). Thus, Castelan-Benitez has not met the first prong of our Rule 404(b)

analysis. See Perez, 443 F.3d at 779 (holding that the evidence first “must be

relevant to an issue other than . . . character”). Accordingly, the district court did

not abuse its discretion in excluding the evidence of Lopez’s criminal history and

guilty plea.

      AFFIRMED.




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