     Case: 10-51083     Document: 00511529348         Page: 1     Date Filed: 07/05/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 5, 2011
                                     No. 10-51083
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

BAUDELIO SANCHEZ-MENDOZA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:09-CR-3-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Pursuant to a written plea agreement, Baudelio Sanchez-Mendoza
conditionally pleaded guilty to aiding and abetting possession of, with intent to
distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A) and 18 U.S.C. § 2. Sanchez contends: the vehicle stop that lead to
his arrest was illegal, and, therefore, the district court erred in denying his
motion to suppress evidence; and, because his actions were not illegal and there



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-51083

was no evidence to link him to criminal activity, other than his presence at the
suspected stash house, the factual basis for his guilty plea is insufficient.
      In contending that the investigative vehicle stop was illegal, Sanchez
challenges only the first prong of the two-part, reasonable-suspicion inquiry
articulated in Terry v. Ohio, 392 U.S. 1, 19-20 (1968): whether the Drug
Enforcement Administration Agents’ conduct was “justified at its inception”. A
vehicle stop is justified at its inception when an officer has an objectively
reasonable suspicion, supported by specific and articulable facts, that criminal
activity has occurred or is about to occur. Terry, 392 U.S. at 21; United States
v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005).
      For the denial of the suppression motion, the district court’s findings of
fact are reviewed for clear error; its legal conclusions, including the reasonable-
suspicion determination, de novo. Ornelas v. United States, 517 U.S. 690, 699
(1996); e.g., United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005). The
evidence is reviewed in the light most favorable to the prevailing party—here,
the Government. Santiago, 410 F.3d at 197.
      In this instance, it was not merely Sanchez’ presence at the suspected
stash house that aroused the Agents’ suspicion. At the time of the stop, they had
information from a cooperating individual (CI) that the CI had picked up cocaine
from chicken-coop structures at a specific location; the Agents observed an
expensive vehicle (Hummer), seemingly out of place, driving in a poor, rural
area; and the Agents watched Sanchez, who had been sitting outside one of the
chicken coops, place a heavy looking, orange object in the back of the Hummer.
Further, in the Agents’ experience, chicken coops are often used to store drugs,
and vehicles such as Hummers are often used by drug traffickers.
      Considering the totality of the circumstances, and giving due weight to the
factual inferences drawn by the Agents and district court, see Ornelas, 517 U.S.
at 699, this information provided the Agents a “particularized and objective
basis” for stopping the Hummer, in which Sanchez was a passenger. See, e.g.,

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                                   No. 10-51083

United States v. Arvizu, 534 U.S. 266, 273 (2002) (citation and internal quotation
marks omitted). The Agents had reasonable suspicion to believe that Sanchez
was engaged in illegal activity; therefore, the district court did not err by
denying Sanchez’ motion to suppress.
      In contending the evidence was factually and legally insufficient to support
his guilty plea, Sanchez: cites inapposite opinions concerning jury verdicts; and,
in that regard, maintains the evidence shows equal, or nearly equal,
circumstantial support to a theory of guilt as to a theory of innocence, and,
accordingly, claims reversal of his conviction is required.
      Without citation to the record, Sanchez claims he “raised his sufficiency
claims in a timely motion” and, therefore, this issue should be reviewed de novo.
His appeal waiver does not preclude review of the sufficiency of the factual basis
of his guilty plea, see, e.g., United States v. Garcia-Paulin, 627 F.3d 127, 131 n.2
(5th Cir. 2010); as the Government points out, however, Sanchez pleaded guilty
and did not raise any objection or challenge in district court to the sufficiency of
the factual basis. Accordingly, this newly-raised challenge is reviewed only for
plain error. See, e.g., id. at 131. For reversible plain error, there must be a clear
or obvious error that affected Sanchez’ substantial rights; even then, we retain
discretion to correct the error and, generally, will do so only if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings”. E.g.,
id.; United States v. Villegas, 404 F.3d 355, 358-59 (5th Cir. 2005).
      Along that line, Sanchez does not challenge, and, therefore has waived any
challenge to, the sufficiency of the factual basis for the aiding-and-abetting
portion of the charged offense. See, e.g., United States v. Scroggins, 599 F.3d
433, 446-47 (5th Cir.) (issues not briefed adequately on direct criminal appeal
are waived), cert. denied, 131 S. Ct. 158 (2010).
      To determine whether there was error regarding the sufficiency of the
factual basis, the elements of the charged offense are compared with the facts
admitted by Sanchez, e.g., Garcia-Paulin, 627 F.3d at 131; and, under plain-

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                                 No. 10-51083

error review, we may analyze other facts in the record that support his
conviction, e.g., United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). The
elements of a § 841(a)(1) offense are knowing possession, with an intent to
distribute, a controlled substance. E.g., United States v. Gamez-Gonzalez, 319
F.3d 695, 699 (5th Cir. 2003). Section 841(b)(1)(A) prescribes penalties based on
the drug type and quantity involved in the § 841(a)(1) offense; here, the
§ 841(a)(1) offense involved five kilograms or more of cocaine. See 21 U.S.C.
§ 841(b)(1)(A)(ii)(II); Gamez-Gonzalez, 319 F.3d at 699-700.
      At rearraignment, the Government asserted: if a trial were held, it would
prove beyond a reasonable doubt that Sanchez “had received [tele]phone calls
earlier [on the day of his arrest] from an individual who said that someone would
be coming to pick [the] cocaine up from him later that day”, and “when that
person never arrived, [Sanchez] went to transport the cocaine back to his house
to await someone to come pick it up”; and a lab report showed that the amount
of cocaine involved was over five kilograms. Sanchez agreed under oath that the
factual basis and facts represented by the Government were true and correct:
“that he possessed [the cocaine] with the intent to distribute”. These facts,
bolstered by the Agents’ suppression-hearing testimony regarding Sanchez’
incriminating statements to them after his arrest, demonstrate that Sanchez
knowingly possessed cocaine with an intent to distribute it to the person who
was to obtain it from him. See id. at 699-700. Accordingly, Sanchez has not
shown error regarding the sufficiency of the factual basis for his guilty plea.
      AFFIRMED.




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