                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               July 6, 2007
                                    TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                              Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 06-8032
                                                         (D.C. No. 05-CR-164-J)
 DONACIANO MONJE-CONTRERAS,                                    (Wyoming)
 also known as Ramiro Rivera-Mendoza,

           Defendant-Appellant.




                                 ORDER AND JUDGMENT *


Before MURPHY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and HARTZ,
Circuit Judge.




       In a five-count indictment filed on July 13, 2005, Donaciano Monje-Contreras (the

“Defendant”) was charged as follows: (1) possession, with an intent to distribute, of

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) possession of

a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §

924(c)(1)(A); (3) being an illegal alien in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(5) and 924(a)(2); (4) being an illegal alien in possession of ammunition in


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2); and (5) illegal re-entry of a previously

deported alien into the United States, in violation of 8 U.S.C. § 1326(a). On November

14, 2005, the Defendant filed a motion to suppress any evidence obtained as a result of

his “illegal detention and seizure.” After hearing, the district court, on January 13, 2006,

filed its “Memorandum Opinion and Order Denying Motion to Suppress.”

       On February 9, 2006, pursuant to a written plea agreement, the Defendant pled

guilty to counts 1, 2, and 5 of the indictment, wherein the Defendant reserved his right to

appeal the district court’s denial of his motion to suppress. Fed. R. Crim. P. 11(a)(2). On

February 27, 2006, the Defendant filed a “Motion to Reconsider Court’s Denial of

Motion to Suppress and Withdraw Guilty Plea,” citing a case decided by the Tenth

Circuit very shortly after the district court’s denial of his Motion to Suppress. On April

11, 2006, the district court denied Defendant’s Motion to Reconsider “in its entirety.” On

April 20, 2006, the district court sentenced the Defendant to imprisonment for 147

months. On April 28, 2006, the Defendant filed a timely notice of appeal.

       The facts out of which the present controversy arises are not really in dispute.

Trooper Gates, a Wyoming State Trooper, was the only witness at the suppression

hearing. On May 27, 2005, at about 10:41 p.m.,1 the Trooper heard a Rocks Springs

police dispatcher issue a REDDI (Report Every Drunk Driver Immediately) report

concerning a “suspected” drunk driver occurring within the Trooper’s general work area.



       1
         The “times” mentioned in this order and judgment come from the video/audio
tape of the stop and the events thereafter occurring at the scene of the stop.

                                              2
The report related to the driver of a white (sometimes referred to as a silver) Jeep

Cherokee with a California license plate, and gave the exact numbers on the plate. The

Trooper shortly thereafter saw a white Jeep Cherokee with a California license plate

bearing a number slightly different, though similar, to the one previously given him by

the dispatcher. The Trooper proceeded to follow the vehicle and observed no erratic

driving on the part of the driver of the Jeep Cherokee. However, the Trooper called the

dispatcher and asked her to check out the license plate number that he had seen on the

Jeep, and after a minute or so, was told that the license number he had given the

dispatcher had expired. The Trooper then stopped the Jeep at about 10:48 p.m.

       As stated, the foregoing events occurred after 10 p.m. After the driver of the Jeep

stopped in a rather well-lit parking lot of an adjacent motel, the Trooper stopped his

vehicle immediately behind the Cherokee, turned on his “search lights,” and got out of his

vehicle. As he was going forward towards the driver’s side of the Jeep, he saw, for the

first time, what appeared to be a temporary registration paper in the upper left portion of

the back window. It later developed that the window was both “tinted and dirty.”

       The Trooper then approached the driver of the Jeep, who was the Defendant, and

asked for his driver’s license, registration papers, and proof of insurance, and in so doing

explained to the Defendant he had been stopped for an expired license plate and that he,

the Trooper, had not been able to see before the stop what appeared to be a registration

paper affixed to the back window of the Cherokee. The Defendant gave the Trooper his

driver’s license, and then the two of them walked back to the rear window, where the

                                              3
Defendant, with some difficulty, “wiped off” the dust or grime on the window so as to

make the temporary registration more visible. In this regard, the Trooper testified at the

suppression hearing that at that point in time he knew he could issue a citation for

“temporary registration obscured” under Wyo. Stat. § 31-4-101.2

       The Trooper and the Defendant then returned to the Cherokee and the Defendant

produced his registration papers. After that, the Trooper returned to his patrol car and

asked the dispatcher to run a “check” on the Defendant’s driver’s license. The dispatcher,

after a few moments, advised the Trooper that the driver’s license had been suspended

and that there was an active extraditable warrant on the Defendant from Garden City,

Kansas. Shortly thereafter, at about 11:22 p.m., the Trooper arrested the Defendant and

later testified that for his own safety he patted down the Defendant and found ammunition

and methamphetamine on his person. An ensuing search of the Defendant’s car revealed

a plastic bag containing 169.9 grams of methamphetamine and a .357 magnum firearm

lodged between the front passenger seat and the center console of the Jeep. The

ammunition previously taken from the Defendant was usable in the firearm. Also found

on the Defendant was $1,629.00 in cash.

       2
           Wyo. Stat. § 31-4-101 reads as follows:
              (a) No person shall knowingly operate, nor shall an owner
              knowingly permit to be operated, upon any highway any
              vehicle:
                                            ***
                      (iii) With license plates, validation stickers or
                      license permits altered, mutilated or obscured so
                      as to prevent the license plate number from
                      being easily read.

                                             4
       On appeal, Defendant argues that the district court erred in denying his motion to

suppress and, in sentencing, finding that the drug quantity in question was between 500

grams and 1.5 kilograms of methamphetamine.

                                    I. Motion to Suppress

       At the hearing on the Defendant’s motion to suppress, the Defendant conceded that

the initial stop of the vehicle he was driving was lawful and did not violate the Fourth

Amendment’s prohibition of “unreasonable searches and seizures.” However, the

Defendant did argue that his “continuing detention” after the Trooper saw the temporary

registration affixed to the inside of the rear window of the Defendant’s vehicle did violate

the Fourth Amendment, and that the methamphetamine and ammunition later found in the

search of his person, as well as the additional methamphetamine and the firearm found

inside his car, together with all statements made by him to the police after his arrest,

should be suppressed, and not used at trial. In thus arguing, the Defendant cited, and

relied heavily on, United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), and our

unpublished opinion in United States v. Pina-Aboite, 109 Fed. Appx. 227 (10th Cir.

2004). In McSwain, 29 F.3d at 561, we spoke as follows:

              Trooper Avery stopped Mr. McSwain for the sole purpose of
              ensuring the validity of the vehicle’s temporary registration
              sticker. Once Trooper Avery approached the vehicle on foot
              and observed that the temporary sticker was valid and had not
              expired, the purpose of the stop was satisfied. Trooper
              Avery’s further detention of the vehicle to question Mr.
              McSwain about his vehicle and travel itinerary and to request
              his license and registration exceeded the scope of the stop’s
              underlying justification.

                                              5
       The district court, in its order denying the Defendant’s motion to suppress, found

that there were facts in the present case which were different than the facts in McSwain

and Pina-Aboite and that these cases did not control the instant case. We agree.

       The starting point in our discussion is that the Trooper saw nothing in the rear

window of the Cherokee until after he had determined that its license plates were expired

and stopped the Cherokee. Only after he had stopped the Cherokee in a well-lit parking

lot of a motel and had turned on his own search lights did he first see anything affixed to

the rear window of the Cherokee. At that point in time he did not examine the paper he

had just noticed, but proceeded directly to the driver’s side of the Cherokee and engaged

in conversation with the Defendant. The Defendant and the Trooper then went back to

examine the “piece of paper” more clearly. It was only after the Defendant, sua sponte,

so to speak, wiped the foreign particles off the window that the registration became

apparent to the Trooper. In this regard, it would appear that it was later determined that

the temporary registration had not expired, and was still valid. In connection therewith,

the Trooper testified that as the Defendant was wiping the dust and grime off the

windshield, it occurred to him that the Defendant had perhaps violated the Wyoming

statute. As above mentioned, in this regard, the district court concluded that the Trooper

did have a reasonable articulable suspicion that the Defendant had violated the Wyoming

statute. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Botero-Ospina, 71 F.3d 783

(10th Cir. 1995). We agree, and like the district court, we reject the suggestion that the




                                              6
Trooper knew the registration was valid when he first exited his vehicle and went forward

to engage in conversation with the Defendant.

       Shortly after the district court denied Defendant’s motion to suppress, the

Defendant filed in the district court a motion to reconsider its ruling, arguing that U.S. v.

Edgerton, 438 F.3d 1043 (10th Cir.), decided on February 22, 2006, dictated a grant of

his motion to suppress. That case did involve a Kansas statute similar to the Wyoming

statute involved in the present case. After hearing, the district court denied that motion,

noting that in Edgerton, there was no evidence that the temporary registration was in any

way “obscured,” except by the fortuitous fact that is was nighttime. In the instant case, of

course, there is evidence that the temporary registration was “obscured,” at least to some

degree, by foreign matter on the rear windshield. In our view, Edgerton is distinguishable

from the present case and does not compel a granting of Defendant’s motion to suppress.

       U.S. v. Ledesma, 447 F.3d 1307 (10th Cir.) decided on May 19, 2006, subsequent

to the filing of the notice of appeal in the instant case, sheds light on the present

controversy. In that case we ruled that displaying a temporary tag behind a heavily tinted

rear window violated a Kansas statute requiring that license plates appear “in a place and

position to be clearly visible....” We recognize that the rear window in the present case

was only “lightly tinted,” and not “heavily tinted,” as it was in Ledesma. However, in

the instant case there was foreign matter on the rear window of the defendant’s car, which

was not the case in Ledesma. In Ledesma, we reviewed the applicable Tenth Circuit law

on the general subject of “obscured” license tags that were not “clearly visible” and

                                               7
concluded that the “stop” and the ensuing short detention in that case was “justified by

reasonable suspicion under the standards set forth in Terry v. Ohio, 392 US 1.” We again

agree.

                                          II. Sentencing

         The presentence report stated that the amount of methamphetamine involved in the

present offense was between 500 grams and 1.5 kilograms, resulting in an offense level of

32. The defendant objected to that recommendation, arguing that only 184 grams of

methamphetamine was involved, i.e., the methamphetamine found on his person and in

his vehicle at the time of his arrest. In this connection the defendant, during his

interrogation by the police, admitted that he had sold, on another occasion, a pound of

methamphetamine to one “Jeff Roberts.” At sentencing, an evidentiary hearing was held,

and a deputy in the local sheriff’s office testified that the defendant, after being given his

Miranda warning, stated, inter alia, that he had on one occasion sold someone named Jeff

a pound of methamphetamine for $11,000 in Rock Springs, Wyoming and that he had on

several other occasions sold methamphetamine to Jeff.3

         It was on this general state of the record that the district court followed the

recommendation of the PSR and set defendant’s base offense level at 32 because his

“relevant conduct” involved sales to Jeff of between 500 grams and 1.5 kilograms of

methamphetamine.

         3
         It should be mentioned that in his post-arrest interview by officers at the police
station, that defendant in response to a question as to “what he does for work?” reportedly
replied “drugs.”

                                                8
       On appeal, defendant argues that the “hearsay” contained in the PSR denied him

his “confrontational rights” guaranteed him by the Sixth Amendment. We recently

rejected that argument in U.S. v. Bustamante, 454 F.3d 1200 (10th Cir. 2006) where we

held that the consideration by a district court of hearsay evidence at sentencing did not

violate a defendant’s Sixth Amendment rights under the Confrontation Clause.

       In this same connection, we would also note that at sentencing, a deputy of the

Sheriff’s office testified as to defendant’s admission of selling a pound of

methamphetamine to Jeff Roberts for $11,000, and was not cross-examined.

       Judgment affirmed.

                                           ENTERED FOR THE COURT


                                           Robert H. McWilliams
                                           Senior Circuit Judge




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