                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            MAY 17 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 15-50015

              Plaintiff - Appellee,              D.C. No. 2:14-cr-00341-DOC-1

 v.
                                                 MEMORANDUM*
DOMINIQUE DAMOR CORNEJO,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                        Argued and Submitted May 6, 2016
                              Pasadena, California

Before: KOZINSKI, W. FLETCHER, and GOULD, Circuit Judges.

      Dominique Cornejo appeals his jury conviction and sentence for conspiracy

to steal mail (18 U.S.C. § 371) and possession of stolen mail (18 U.S.C. § 1708).

We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1.    Officers had reasonable suspicion to stop Cornejo and his co-defendant.

They received an in-person tip from a motorist as the crime was being committed,

and when they arrived at the scene less than a minute later, they saw mail scattered

around the collection boxes and two men who matched the suspects’ description

five feet from the boxes walking quickly away. This amounts to reasonable

suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30

(1968).

2.    After stopping Dominique Cornejo and his cousin Alberto Cornejo, Officer

Sanchez spotted a piece of mail protruding from Defendant’s pocket. This fact,

plus those recounted above, gave rise to “a fair probability” that the Cornejos “had

committed a crime.” United States v. Potter, 895 F.2d 1231, 1233–34 (9th Cir.

1990). Because there was probable cause to arrest Defendant, he could be searched

incident to his arrest. Id. at 1234. Accordingly, the district court properly denied

Defendant’s motion to suppress.

3.    The district court’s failure to give a limiting instruction to the jury regarding

a witness who testified in two roles was harmless. The prosecution bifurcated the

witness’s percipient and expert testimony, and there was strong evidence of guilt

apart from that witness’s testimony. See United States v. Torralba-Mendia, 784

F.3d 652, 661–62 (9th Cir. 2015).


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4.    It was not clear error for the district court to apply a two-level sentencing

enhancement for prior incidents of stolen mail attributed to Cornejo. The evidence

supported a conclusion that the prior mail theft was part of a common scheme to

steal checks and money orders, which could then be altered and deposited.

5.    It was not error for the district court to apply a four-level sentencing

enhancement according to a “Special Rule,” U.S.S.G. § 2B1.1(b)(2), Application

Note 4(C)(ii)(I) (2014), that theft from a mail collection box “shall be considered

to have involved at least 50 victims.” The Special Rule’s text does not support

Cornejo’s contention that it is merely a rebuttable presumption to be used when the

actual number of victims is unknown. The district court correctly applied the

Special Rule in this case, given the difficult-to-quantify non-monetary losses from

mail theft offenses and the importance of maintaining the integrity of the U.S. mail.

See United States v. Gonzalez Becerra, 784 F.3d 514, 519 (9th Cir. 2015).

      AFFIRMED.




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