                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 9, 2007
                              TENTH CIRCUIT                          Elisabeth A. Shumaker
                   _____________________________________                 Clerk of Court

 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
       v.                                                 No. 05-2370
 JERRY TRAXLER,                                          (D. of N.M .)
                                                   (D.C. No. CR-05-144-B)
              Defendant-Appellant.
                  _____________________________________

                                   OR DER
                              Filed April 9, 2007
                   _____________________________________

Before BR ISC OE, EBEL, and TYM KOVICH, Circuit Judges.
                _____________________________________

      This matter is before the court on Appellant Traxler’s petition for rehearing

en banc, or in the alternative, for panel rehearing of the opinion issued M arch 1,

2007 in United States v. Traxler and United States v. Denning, 05-2370 and

06-2179, respectively. The petition for rehearing en banc was circulated to all

judges of the court who are in regular active service. As no judge in regular

active service requested that the court be polled, the petition for rehearing en banc

is denied. The petition, in the alternative, for panel rehearing, is also denied.
      The panel shall, however, amend the opinion sua sponte at Section II. B.3

as noted. A copy of the amended opinion is attached to this order.



                                      Entered for the Court:

                                      Timothy M . Tymkovich
                                      Circuit Judge




                                        -2-
                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                     PUBLISH
                                                                     March 1, 2007

                                                                 Elisabeth A. Shumaker
                    UNITED STATES CO URT O F APPEALS                 Clerk of Court

                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
       v.                                              No. 05-2370
 JERRY TRAXLER,

              Defendant-Appellant.


 U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
       v.                                              No. 06-2179
 D EN N IS D EN N IN G ,

              Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                  FOR T HE D ISTRICT OF NEW M EXICO
                         (D.C. NO . CR-05-144-RB)


Jill M . W ichlens, Assistant Federal Public Defender (Raymond P. M oore, Federal
Public D efender, with her on the briefs) Office of the Federal Public D efender,
Denver, Colorado, for Defendant-Appellant Jerry Traxler in Case No. 05-2370.

Howard L. Anderson, Fairacres, New M exico, for D efendant-Appellant Dennis
Denning in Case No. 06-2179.

David N. W illiams, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the brief) Office of the United States Attorney,
Albuquerque, New M exico, for Plaintiff-Appellee in Case Nos. 05-2370 and 06-
2179.


Before BR ISC OE, EBEL, and TYM KOVICH, Circuit Judges.


T YM K O VIC H, Circuit Judge.


      Defendants-Appellants Jerry Traxler and Dennis Denning were convicted of

conspiracy to possess methamphetamine with the intent to distribute. Denning

was also convicted of possession with intent to distribute. Both Traxler and

Denning appeal the district court’s denial of their motion to suppress evidence

recovered from their vehicles when they were arrested outside Las Cruces, New

M exico. For the reasons articulated below, we find that officers had probable

cause to arrest Traxler and Denning when they stopped the cars, so the evidence

was properly admitted.

      In addition, Traxler appeals his sentence, arguing that (1) comm ents by the

sentencing judge referring to the Apostle Paul impermissibly injected religion into

the sentencing process, violating his due process rights protected by the Fifth

Amendment; (2) his sentence is contrary to United States v. Sanchez-Juarez, 446

F.3d 1109 (10th Cir. 2006), because the court failed to explain its application of

the sentencing factors set forth in 18 U.S.C. § 3553(a); and (3) his sentence is

otherwise unreasonable. W e find no due process violation and affirm the

sentence.

                                         -2-
                                   I. Background

      On October 28, 2004, Eric Hansen, a Drug Enforcement Administration

Agent in Las Cruces, New M exico, received a call from another D EA Agent in

M idland, Texas. This agent reported that a reliable confidential informant had

provided information about an imminent methamphetamine transaction. The

informant explained in great detail that Jerry Traxler and Adam Ladue w ere

planning to buy a quantity of methamphetamine from an Arizona-based dealer

named D ennis in M ayhill, New M exico. The informant said Traxler and Ladue

would be driving a black Ford Ranger pickup 1 and the two had left M idland that

morning at 8:30. The M idland agent was aware that the informant had previously

provided “usable” information to the DEA and local police. Vol. V at 12:3.

      Hansen and others responded to this tip by setting up surveillance in

M ayhill. The officers spotted a Ford Ranger pickup truck carrying two men

matching the descriptions of Traxler and Ladue as it entered M ayhill. They

followed the truck through M ayhill to Cloudcroft, New M exico, twenty miles to

the west.

      The truck drove around Cloudcroft for about two hours, going down side

streets and through parking lots. Hansen later testified the truck was performing



      1
         Hansen testified at the suppression hearing that the informant told Midland
police Traxler would be driving a black truck. At the hearing, Hansen never testified to
the color of the truck he spotted in New Mexico. It is clear from the trial record that
the truck was white, not black as the informant suggested.

                                          -3-
“heat runs,” which he described as a tactic familiar to law enforcement involving

erratic and spontaneous maneuvers meant to determine whether a vehicle was

being followed. The truck left Cloudcroft and proceeded to Alamogordo, New

M exico, where officers from M idland participating in the surveillance positively

identified Traxler and Ladue. The two rented a motel room for the night and took

the truck out on more late-night “heat runs” in Alamogordo.

      Also during the night of October 28, the informant provided supplemental

information that the man from Arizona was still en route with the

methamphetamine, although plans had changed. The informant said he knew this

because Traxler and Ladue had called to tell him the deal would still take place,

though he could provide no further details.

      On the morning of October 29, Traxler and Ladue left Alamogordo and

drove to Las Cruces. In Las Cruces, Traxler and Ladue again drove haphazardly

around the town before eventually meeting a green car with Arizona licence plates

in a parking lot. A check on the plates established the car was registered to a

Dennis Denning.

      W hen the truck and car left the parking lot, several unmarked police

vehicles followed. The truck and car followed a road to a more rural area, where

they each made a sudden U-turn. This forced the surveillance vehicles to do the

same, compromising the operation. The officers decided to stop both cars and

ordered the occupants out at gunpoint.

                                         -4-
        Dennis Denning was driving the green car. He admitted he was in Las

Cruces to sell nine or ten ounces of methamphetamine to Traxler and Ladue for

$5,000. From Denning’s car, officers recovered methamphetamine and an

envelope on which w as w ritten the name and room number of Traxler and Ladue’s

Alamogordo motel. From Traxler’s truck, officers recovered $4,990 from the

false bottom of an aerosol can.

        Traxler, Denning, and Ladue were charged with conspiracy to possess with

intent to distribute more than fifty grams of methamphetamine. Denning was also

charged with possession with intent to distribute more than fifty grams of

methamphetamine. Ladue pleaded guilty and agreed to testify against the others

at trial.

        Prior to trial, Denning filed a motion, which Traxler joined, to suppress the

evidence recovered from the two vehicles. The district court conducted a hearing

on the motion at which the only witness was DEA Agent Hansen. Traxler and

Denning argued law enforcement officers had neither reasonable suspicion nor

probable cause to stop Denning, Traxler, and Ladue on the basis of the

confidential informant’s tip and police observations.

        The district court denied the motion, analyzing the stop under Terry v.

Ohio, 392 U.S. 1 (1968). 2 The court concluded that the informant’s tip combined


        2
        The district court’s order created some confusion as to when the arrest in this
case occurred. In the order denying the motion to suppress, the court stated, “The
                                                                           (continued...)

                                          -5-
with the evasive maneuvers of the vehicles in Las Cruces provided reasonable

suspicion for the stop. The court held probable cause to arrest arose once

Denning admitted the purpose of his trip. The evidence was admitted at trial, and

a jury convicted both Traxler and Denning.

                                      II. Analysis

       Denning and Traxler both contest the district court’s denial of their motion

to suppress. Traxler additionally claims error with respect to three sentencing

issues. W e address each argument in turn.

       A. Denning and Traxler’s M otion to Suppress

       W hen reviewing a district court’s denial of a motion to suppress, we accept

the district court’s factual findings unless they are clearly erroneous and view the

evidence in the light most favorable to the government. United States v. Basham,

268 F.3d 1199, 1203 (10th Cir. 2001). Nevertheless, Fourth Amendment

reasonableness is a question of law , so we review de novo the district court’s

determination of reasonable suspicion and probable cause. Id.




       2
        (...continued)
agents jumped out of their vehicles with guns drawn, stopped the Traxler/Ladue truck
and the green car, and arrested the suspects at gun point.” Vol. I, Doc. 58 at 3
(emphasis added). The court nevertheless went on to analyze the stop not as an arrest
but as an investigatory detention under Terry. Id. at 6. Our conclusion that the officers
had probable cause to arrest when they stopped the cars renders the confusion in terms
inconsequential. Although it is obvious the district court believed the stop was merely
an investigative detention, we are willing to assume Traxler and Denning were arrested
for Fourth Amendment purposes the moment officers stopped their cars at gunpoint.

                                            -6-
      The Fourth Amendment prohibits unreasonable searches and seizures. To

be reasonable under the Fourth Amendment, an arrest must be supported by

probable cause. Cortez v. M cCauley, — F.3d — , No. 04-2062, 2007 W L 503819

(10th Cir., Feb. 16, 2007). Officers may, however, make an investigatory stop

short of arrest based on a reasonable suspicion that a crime is afoot. Id. (relying

on Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000)). Traxler and Denning

argued law enforcement officers violated the Fourth Amendment when they

stopped their cars for two alternative reasons: (1) the stop was an arrest for which

law enforcement lacked probable cause, or (2) the stop was an investigatory

detention for which law enforcement lacked reasonable suspicion. W e reject both

arguments because we conclude law enforcement officers had probable cause to

arrest Traxler and Denning when they stopped the two cars.

      Probable cause exists w hen under the totality of the circumstances there is

a reasonable probability that a crime is being committed. United States v.

Gordon, 173 F.3d 761, 766 (10th Cir. 1999). The “‘totality of the circumstances’

test does not depend on whether any particular factor is innocent when considered

in isolation, but on whether, taken as a whole, the facts observed by the law

enforcement officers indicate a fair probability” of criminal activity. United

States v. Concepcion-Ledesm a, 447 F.3d 1307, 1316 (10th Cir. 2006). “Even

where a particular factor, considered in isolation, is of ‘limited significance’ . . . ,

it nonetheless may affect the Fourth Amendment analysis when combined with

                                           -7-
other indicia of probable cause or reasonable suspicion.” Id. (quoting United

States v. Johnson, 364 F.3d 1185, 1192 (10th Cir. 2004)). “[N]o single factor is

determinative, and we view the circumstances in their totality rather than

individually.” Id. (quoting United States v. Valenzuela, 365 F.3d 892, 897 (10th

Cir. 2004)).

      A confidential informant’s tip can factor into the totality of the

circumstances supporting probable cause w hen the tip is corroborated by officers’

investigations. United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004). For

example, in Artez we found probable cause when police observed that several

consecutive visitors to a residence each stayed only for a short period of time,

which corroborated an informant’s tip that drug transactions were occurring.

Under the totality of the circumstances test, any deficiency in one aspect of an

informant’s tip may be compensated for by other indicia of reliability. Id.

(quoting Illinois v. Gates, 462 U.S. 213, 233 (1983)).

      Officers in this case had probable cause to conclude a crime was being

comm itted. First of all, a number of facts corroborated the material aspects of the

informant’s tip, including (1) the arrival in New M exico of Traxler and Ladue, (2)

the make and model of their pickup truck, and (3) the rendezvous with a car

registered in Arizona to a man named Dennis. Law enforcement was in

contemporaneous communication with the informant, who told them the

transaction was still “on” even though it did not take place in M ayhill as

                                         -8-
originally expected. Secondly, when the informant’s strongly corroborated

information is combined with officers’ observations of evasive driving techniques

consistent with an imminent drug transaction, further weight must be given to the

conclusion that a drug transaction was at play. All of these facts together easily

amount to a fair probability that a crime was being committed.

      Given the weight of these circumstances, a minor inconsistency in the

informant’s tip— the truck was white instead of black— does not defeat a finding

of probable cause. Accordingly, probable cause arose prior to the stop, and the

evidence was properly admitted.

      B. Traxler’s Sentencing

      Traxler was sentenced to 324 months, at the bottom of the applicable U.S.

Sentencing Guidelines (USSG ) range. At sentencing, Traxler objected to the

Guidelines range of 324–405 months recommended in his pre-sentence

investigation report. He specifically requested that the court reject an upward

two-level leadership adjustment and that the court consider a non-Guidelines

sentence under 18 U.S.C. § 3553(a) due to his drug addiction, age, and poor

health. The court found Traxler was a leader and imposed the two-level

adjustment pursuant to USSG § 3B1.1(c). The court, however, only indirectly

addressed Traxler’s reasons for a low er sentence under 18 U.S.C. § 3553(a).




                                         -9-
      In the course of the sentencing, the following exchange took place between

the sentencing judge and Traxler after Traxler expressed hope that he would “get

something out of [jail]”:

      THE COURT: Gosh, I do too. That’s my hope for you. The fact is, good
      things can come from jail. A guy named Paul was put in jail a couple
      thousand years ago and wrote a bunch of letters from jail —

      TRAXLER: Yes.

      THE COURT: — and people are still reading those letters and being
      encouraged by them and finding hope in them thousands of years later. So
      don’t tell me that good things can’t come from jail. I guess they can, and I
      hope they will in your experience.

Vol. X at 31:7-17.

      Traxler first argues this reference to the Apostle Paul by the sentencing judge

impermissibly injected religion into the sentencing process, thereby violating his

Fifth Amendment right to due process of law . He also argues that his case should

be remanded for re-sentencing under United States v. Sanchez-Juarez, 446 F.3d

1109, 1117 (10th Cir. 2006), because the sentencing judge did not consider the

Guidelines factors in arriving at his sentence. Finally, he argues his sentence is

otherw ise unreasonable. W e disagree.

      Traxler did not object at the hearing to the sentencing judge’s comments

about the Apostle Paul, so we review his due process claim only for plain error. See

United States v. Battle, 289 F.3d 661, 664–65 (10th Cir. 2002). W e review




                                         -10-
sentences imposed by the district court for reasonableness. Sanchez-Juarez, 446

F.3d at 1114.

      1. Due Process

      Sentencing must comply with due process, and a judge may not base a

sentence on impermissible considerations, such as race, religion, or gender.

Gardner v. Florida, 430 U.S. 349, 358, 362 (1977). Traxler argues that the

sentencing judge imposed a higher sentence because of impermissible religious

considerations.

      Traxler principally relies on a Fourth Circuit case that held a judge’s

comments about religion during sentencing violated the defendant’s due process

rights. See United States v. Bakker, 925 F.2d 728 (4th Cir. 1991). In Bakker, the

defendant was a high-profile televangelist charged with fraud. Jim Bakker was

accused of misappropriating millions of dollars collected by selling partnerships to

his followers that were supposed to provide lodging benefits at a Christian retreat

center Bakker promised to construct. Instead, Bakker used the money to fund a

lavish lifestyle for himself and his wife. In sentencing Bakker, the judge

comm ented: “He had no thought whatever about his victims and those of us who do

have a religion are ridiculed as being saps from money-grubbing preachers or

priests.” Id. at 740 (emphasis in original).

      On appeal, the court vacated Bakker’s sentence. In finding that the judge

appeared to sentence Bakker more harshly for personal considerations rather than

                                         -11-
based on Bakker’s conduct, the court concluded that his due process rights had been

compromised because of “the explicit intrusion of personal religious principles as

the basis of a sentencing decision.” Id. at 741. The decision emphasized that the

sentencing judge’s “personal religious principles” were the reason for Bakker’s

sentence and refused to “sanction sentencing procedures that create the perception

of the bench as a pulpit from which judges announce their personal sense of

religiosity and simultaneously punish defendants for offending it.” Id. at 740. The

court paid particular attention to the personal offense the judge expressed on behalf

of “those of us who do have a religion,” which suggested that Bakker’s conduct had

subjected the judge personally to ridicule. Id. at 740.

      The case was remanded for resentencing after the court concluded the

sentencing judge’s religion had been the decisive factor in determining what

sentence to impose. Id. at 740–41 (“Regrettably, we are left with the apprehension

that the imposition of a lengthy prison term here may have reflected the fact that the

court’s ow n sense of religious propriety had somehow been betrayed.”). On

remand, a different judge reduced Bakker’s sentence from forty-five to eighteen

years. See U nited States v. Taggart, Nos. 92-6468, 92-6469, 1993 W L 10876, at *1

(4th Cir. Jan. 21, 1993).

      W e have once before addressed an appeal predicated on Bakker. In a case

involving theft of military equipment, we interpreted Bakker’s due process logic to

extend only to those circumstances where impermissible personal views expressed at

                                          -12-
sentencing were the basis of the sentence. United States v. Roth, 934 F.2d 248, 253

(10th Cir. 1991) (finding no due process violation when judge’s reference to his

personal military background “simply highlighted the seriousness of defendant’s

offense”). O ther courts agree. See, e.g., Arnett v. Jackson, 393 F.3d 681, 687–88

(6th Cir. 2005) (finding no due process violation when sentencing judge’s reference

to a Bible verse was not the “basis” of the sentence or the judge’s “final source of

authority”); U nited States v. Salama, 974 F.2d 520, 522–23 (4th Cir. 1992) (finding

no due process violation when judge’s “shock” at the leniency of the Guidelines and

references to defendant’s alienage did not influence the sentence imposed). These

cases confirm that context matters.

         The context of the judge’s comments in this case easily disposes of the due

process allegation. It is obvious that the sentencing judge referred to the Apostle

Paul’s letters as a way to illustrate that something good can come from difficult

circumstances, even jail. In no way did the judge indicate Traxler needed a longer

sentence to pay religious penance. Indeed, nothing suggests the judge’s personal

view of those letters prompted or influenced any aspect of Traxler’s sentence. The

judge expressed no personal offense analogous to the Bakker judge’s defense of

“those of us who do have a religion,” and the record does not support a view that

Traxler received a harsher sentence because of the judge’s personal religious

principles. In fact, the judge sentenced Traxler at the bottom of the Guidelines

range.

                                           -13-
      In short, Traxler suffered no prejudice— religious or otherwise— because of

the court’s reference to the Apostle Paul. W e are satisfied the judge’s personal

religious views were not a factor in Traxler’s sentence.

      2. Sanchez-Juarez

      W hen a defendant makes a non-frivolous argument for a below-Guidelines

sentence, but receives a within-Guidelines sentence, the district court must provide

the appellate court with a record by which this court can discern whether the district

court considered the applicable 18 U.S.C. § 3553(a) factors. Sanchez-Juarez, 446

F.3d at 1117. Arguments “clearly without merit” can be “passed over in silence.”

Id. (quoting United States v. Cunningham, 429 P.3d 673, 679 (7th Cir. 2005). A t

the sentencing hearing, Traxler argued a below-Guidelines sentence was appropriate

because of his age, long drug addiction, and poor health. Traxler argues the district

court did not refer to the § 3553(a) factors in arriving at his sentence. Since he did

not object at sentencing, we review for plain error. United States v. Torres-Duenas,

461 F.3d 1178, 1182-83 (10th Cir. 2006).

      Resentencing is not required under Sanchez-Juarez. The sentencing judge

must address the substance of Traxler’s argument but need not refer explicitly to

every § 3553(a) factor. See United States v. Lopez-Flores, 444 F.3d 1218, 1222

(10th Cir. 2006). The sentencing judge here discussed Traxler’s long history of

drug abuse and the seriousness of the methamphetamine problem as reasons for not

departing from the Guidelines. He addressed Traxler’s medical problems by

                                          -14-
directing that Traxler be housed in a facility with appropriate medical resources.

The judge also referred to and incorporated the pre-sentence report, which expressly

discussed the § 3553(a) factors and determined they did not warrant a non-

Guidelines sentence.

      The record thus provides an adequate basis for reviewing the sentencing

judge’s consideration of the § 3553(a) factors, and we are satisfied that the judge

considered them along with Traxler’s arguments. Accordingly, there was no error,

let alone plain error.

      3. Reasonableness

      Traxler’s sentence is presumptively reasonable under United States v. Kristl,

437 F.3d 1050, 1054 (10th Cir. 2006), because it is within the Guidelines range.

Traxler has presented nothing to rebut that presumption or indicate that the court

would impose a lesser sentence upon further consideration. Traxler’s plea for a

lesser sentence was fully evaluated at the sentencing hearing. Even without the

Kristl presumption of reasonableness, we would find Traxler’s sentence w as a

reasoned and reasonable application of the court’s discretion under § 3553.

                                   III. Conclusion

      For the foregoing reasons, we AFFIRM Traxler’s sentence and the district

court’s denial of the motion to suppress.




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