                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                      PUBLISH                        July 1, 2014
                                                                 Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                    Clerk of Court

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                      No. 13-7036

 MICHAEL SALAS,

              Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE EASTERN DISTRICT OF OKLAHOMA
                  (D.C. NO. 6:12-CR-00070-RAW-1)


Aaron S. Haas, Salmon & Haas, San Antonio, Texas, for Appellant.

Linda A. Epperley, Assistant United States Attorney (Mark F. Green United
States Attorney, and Shannon L. Henson, Assistant United States Attorney, with
her on the brief) United States Attorney’s Office, Muskogee, Oklahoma, for
Appellee.


Before LUCERO, TYMKOVICH, and BACHARACH, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Michael Salas was pulled over for erratic driving and consented to a search

of his car, which yielded over 20 pounds of methamphetamine. He pleaded guilty

to one count of possession with intent to distribute the meth.
      Salas challenges the district court’s denial of his motion to suppress the

drug evidence. He contends the district court erred in finding that the police

officer had reasonable suspicion to stop his car based on a violation of an

Oklahoma fog line statute that requires driving “as nearly as practicable entirely

within a single lane.” Okla. Stat. § 11-309. He also appeals the district court’s

sentence based on the court’s refusal to decrease his offense level by one point

under § 3E1.1 of the United States Sentencing Guidelines (USSG) for acceptance

of responsibility and the court’s refusal to issue a downward departure for minor

or minimal participation in criminal activity under § 3B1.2.

      Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM both the

denial of the motion to suppress and Salas’s sentence. The district court correctly

found that the officer had reasonable suspicion to stop Salas for violating the

Oklahoma traffic statute and that Salas consented to the search of his car. Based

on the facts of this case, the district court did not clearly err by refusing to

decrease Salas’s offense level for acceptance of responsibility where the

government had already begun trial preparations. Nor did the district court

clearly err in refusing to issue a downward departure where Salas failed to prove

he was a minor or minimal participant in the scheme.

                                  I. Background

      Salas was passing through Oklahoma on his way from Arkansas to Texas

on a summer afternoon. Deputy Jeffrey Gragg was engaged in traffic control on

                                          -2-
Interstate 40, immediately east of a bridge crossing the Arkansas River in

Muskogee County. Gragg often patrolled in this area because there was a curve

in the road immediately after the bridge that can be a safety concern. Gragg

testified at the suppression hearing that the weather conditions were good that

day; it was overcast and there were light and variable winds but that the wind was

not so strong that it would affect a passenger vehicle.

      From his station in the center median, Gragg noticed a Ford Taurus

traveling westbound cross the fog line, the yellow or white line on the right side

of the highway. According to Gragg, he observed the vehicle cross “halfway

across the fog line” on the right side of the highway. App. 55. Gragg testified

that he decided to follow the car because he thought the driver might be tired,

under the influence of a narcotic, or texting. After waiting for several cars to

pass by, Gragg pulled into the left lane of the highway and began following the

Taurus. 1 Gragg testified that he pulled even with the vehicle to check how many

people were in the car, and noticed that the driver had a “pretty good grip” on the

steering wheel and would not look in his direction. App. 58. Gragg then slowed

down and fell behind the Taurus so he could run the plates.



      1
         While he was following, Gragg testified that he saw the Taurus change
into the left lane without signaling—a traffic violation—and then move back to
the right lane, this time signaling. On cross examination, however, he later said
that he was not “100 percent sure” that Salas crossed into the passing lane without
signaling. App. 84.

                                         -3-
      It was at this point, Gragg testified, that he saw the Taurus cross the fog

line a second time. After it crossed the line the second time, Gragg testified that

the Taurus slowed down so that “it put me almost actually out in front of him.”

App. 59. He then followed the car for about five minutes until he could get to a

safe area to stop the vehicle. He testified that, although he hit his emergency

lights, which triggers the patrol car’s video record mechanism to begin recording

one minute prior to the lights activation, all the traffic violations he observed

occurred before the video began recording.

      After both cars pulled over on the shoulder, Gragg approached the Taurus

and informed the driver, Salas, that he stopped him because he had crossed the

fog line several times. He asked Salas if he had had anything to drink, but Salas

responded that he was just tired. Gragg ran Salas’s valid Georgia driver’s license,

which revealed no outstanding warrants. Gragg asked Salas to sit in the

passenger seat of his patrol car while he wrote the warning for the traffic

violation. Salas told Gragg that he had driven from McKinney, Texas, around 8

that morning to gamble at a casino in Fort Smith, Arkansas, but could not

remember the name of the casino. Salas also mentioned that he was unemployed

and was then living with his sister in Dallas while he looked for a job. Gragg

testified that these statements raised his suspicions because it seemed unlikely




                                          -4-
that someone would drive several hundred miles to gamble for only a few hours. 2

Gragg testified he also became suspicious when a check on the plates on the

Taurus revealed that the car was a “high-end rental” and that Salas had paid an

extra fee to rent it because he was under age 25. App. 66.

      After issuing Salas a warning for failure to stay in his lane, Gragg returned

Salas’s documents and told Salas he was “good to go.” App. 67. Salas thanked

him for giving him a warning and offered to shake Gragg’s hand. Immediately

after that, while Salas was still standing near the passenger side of Gragg’s car,

Gragg asked Salas if he had time for a few more questions. Salas replied, “Sure.”

App. Dash Cam Video, 15:03:01. In response to Gragg’s questions, Salas denied

having anything illegal in his car, including drugs or any large sums of money.

Gragg then asked if he could search the vehicle. Gragg testified he thought Salas

“said no that he didn’t mind.” App. 70. Gragg then told Salas to stay in the patrol

car, and to hit the siren if he needed anything. In the car, Gragg found two cell

phones and boarding passes from Mexico to Dallas. Gragg unlocked the trunk,

which contained a suitcase and several stacks of clothes. Upon unzipping the

suitcase, Gragg discovered nine one-gallon bags containing a white substance that

later tested positive for methamphetamine. The weight totaled almost 20 pounds.




      2
         Salas told Gragg that he had once won $1000 at the casino he had just
visited, but that $100 was his limit and that he had already lost $100 that day.

                                         -5-
      Salas was charged with one count of possession with intent to distribute

500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(A). He moved to suppress the evidence uncovered from his car,

arguing that Gragg lacked reasonable suspicion or probable cause to stop Salas

and that Salas did not validly consent to search the car.

      The district court denied the motion to suppress because it found that Gragg

had reasonable suspicion to stop Salas based on the fog line violation. The

district court found credible Gragg’s testimony that the vehicle crossed the fog

line twice, but held that even one violation would have given reasonable

suspicion to stop Salas because Salas “crossed halfway onto the shoulder” and

any light and variable winds would not have pushed him that far over the fog line.

App. 115. The district court’s order did not mention the search, but the court

adopted the magistrate judge’s report, in which the magistrate judge concluded

the search was consensual. App. 103.

      Following the denial of his motion to suppress, Salas entered a guilty plea

to the single count in the indictment. The district court accepted the presentence

report’s recommended base offense level and sentenced Salas to 151 months’

imprisonment and three years of supervised release.

                                   II. Analysis

      Salas challenges the search and the sentence imposed by the district court.

As we explain, neither challenge is meritorious.

                                         -6-
      A. Fourth Amendment Claim

      In reviewing the denial of a motion to suppress, we review the district

court’s findings of fact for clear error, considering the evidence in the light most

favorable to the government. United States v. Fox, 600 F.3d 1253, 1257 (10th

Cir. 2010). We review the district court’s ultimate determination of

reasonableness under the Fourth Amendment de novo. Id.

             1. The Initial Stop

      Salas first challenges the lawfulness of the initial traffic stop. Because a

traffic stop is a seizure under the Fourth Amendment, it must be justified at its

inception—when the officer intrudes on the motorist’s liberty interest. United

States v. Martinez, 512 F.3d 1268, 1272 (10th Cir. 2008). A traffic stop is

justified at its inception “if the officer has either (1) probable cause to believe a

traffic violation has occurred or (2) a reasonable articulable suspicion that ‘this

particular motorist violated any one of the multitude of applicable traffic and

equipment regulations of the jurisdiction.’” Id. (quoting United States v. Ozbirn,

189 F.3d 1194, 1197–98 (10th Cir. 1999)). Whether reasonable suspicion exists

is an objective inquiry determined by the totality of the circumstances, and “an

officer’s subjective motivation for the stop ‘play[s] no role in ordinary

[reasonable suspicion] Fourth Amendment analysis.’” United States v. Harmon,

742 F.3d 451, 456 (10th Cir. 2014) (alteration in original) (quoting Whren v.

United States, 517 U.S. 806, 813 (1996)); see also United States v. Botero-

                                          -7-
Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (“[A] traffic stop is valid under the

Fourth Amendment if the stop is based on an observed traffic violation or if the

police officer has reasonable articulable suspicion that a traffic or equipment

violation has occurred or is occurring.”).

      The relevant Oklahoma statute in this case in effect at the time of the stop

provided that “[a] vehicle shall be driven as nearly as practicable entirely within a

single lane.” Okla. Stat. § 11-309. 3 Contrary to Salas’s arguments, we have held

that even a single violation of a traffic statute virtually identical to § 11-309 can

provide reasonable suspicion for a stop based on all the surrounding facts and

circumstances. See Harmon, 742 F.3d at 458; United States v. Alvarado, 430 F.3d

1305, 1308 (10th Cir. 2005); United States v. Cline, 349 F.3d 1276, 1287 (10th

Cir. 2003); United States v. Zabalza , 346 F.3d 1255, 1258 (10th Cir. 2003);

Ozbirn, 189 F.3d at 1198.




      3
         Although Oklahoma state courts have not authoritatively interpreted this
statute, at least one Oklahoma court has held that an officer had reasonable
suspicion to stop a defendant where the defendant violated § 11-309 by crossing
the “center-dividing line of a four lane highway and veering back to the shoulder
of the road.” Hutchinson v. State, 562 P.2d 867, 870–71 (Okla. Crim. App. 1977).
And we have held that an officer had reasonable suspicion to stop a defendant for
violating § 11-309 because the statute “encompasses crossing the center line and
the shoulder line.” United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.
1998).

                                          -8-
      Harmon is instructive. There, we held that a traffic stop based on a similar

New Mexico statute, N.M. Stat. Ann. § 66-7-317, 4 was reasonable where the

record indicated no evidence of difficult or adverse driving conditions, the driver

was weaving in his lane, and “at one point [the driver’s] front and rear passenger

tires ‘crossed over the outer white line’ before coming back into the lane.” 742

F.3d at 453. Likewise, in Alvarado we found that an officer had reasonable

suspicion to stop a car for violating a Utah statute, Utah Code Ann. § 41-6-61(1), 3

where the car crossed about one foot over the right fog line and the record also

indicated that there were no adverse weather conditions or obstructions in the

road. 430 F.3d at 1306–07.

      Salas argues that the video does not show Salas crossed the fog line twice,

as the district court found. He argues that at best there was only one violation,

which occurred immediately after a curve in the road and that it was not

practicable to stay in the lane at that juncture “because of the way the wind

interacts with the road.” Aplt. Br. at 13. Salas is correct the video does not show

the fog line violations. But Gragg testified that all of the traffic violations

occurred before the video began recording, which explains their absence from the



      4
        N.M. Stat. Ann. § 66-7-317 requires a vehicle to be “driven as nearly as
practicable entirely within a single lane.”
      3
         Utah Code Ann. § 41-6-61(1) in effect at the time provided that “[a]
vehicle shall be operated as nearly as practical entirely within a single lane.”
Alvarado, 430 F.3d at 1308.

                                          -9-
footage. 4 Gragg also testified that the distance between the point when he saw the

first fog line violation to the point when he activated his emergency lights was

over six miles and took almost five minutes to traverse. App. 61–62. Viewing

the evidence in the light most favorable to the government and giving due weight

to the district court’s findings regarding Gragg’s credibility, as we must, we

conclude the district court’s finding that two violations occurred was not clearly

erroneous. See United States v. Kitchell, 653 F.3d 1206, 1216 (10th Cir. 2011)

(“Judging the credibility of the witnesses, determining the weight to be given to

evidence, and drawing reasonable inferences and conclusions from the evidence

are within the province of the district court.” (citations and internal quotation

marks omitted)); see also id. at 1215 (“[T]his court accepts the factual findings of

the district court, and its determination of witness credibility, unless they are

clearly erroneous.” (citations and internal quotation marks omitted)).

      But even assuming for the sake of argument that only a single fog line

violation occurred, Gragg still had reasonable suspicion to stop Salas. Salas’s

Ford Taurus was a four-door sedan that would have been unaffected by any light

winds, not a top-heavy large truck or a U-haul trailer. See United States v.

Vazquez, 555 F.3d 923, 928 (10th Cir. 2009) (“[I]n any event Mr. Vazquez’s 2003

Honda Civic was a low-profile compact car unlikely to be affected by the wind.”).

      4
        The patrol car’s camera continuously records footage but only begins
saving the footage one minute prior to the activation of the car’s emergency
lights.

                                         -10-
The district court’s findings that any light and variable winds would not have

caused Salas’s car to drift halfway over the fog line are therefore not clearly

erroneous. See id. (“A finding of fact is not clearly erroneous unless it is without

factual support in the record, or unless the court after reviewing all the evidence

is left with a definite and firm conviction that the district court erred.”). And

although the initial fog line violation occurred near an area where there was a

curve in the road, this is not the type of treacherous terrain that would cause a

driver to veer halfway over the fog line. See United States v. Tang, 332 F. App’x

446, 452 (10th Cir. 2009) (finding reasonable suspicion to stop for fog line

violation where, “[a]lthough it was dark and there was a mild to moderate wind,

the interstate was not winding or narrow and only curved gradually to the left”);

cf. United States v. Gregory, 79 F.3d 973, 978 (10th Cir. 1996) (no reasonable

suspicion to stop U-haul truck for a single violation of a fog line statute where

“[t]he road was winding, the terrain mountainous and the weather condition was

windy”).

      Under the totality of these circumstances, Gragg had reasonable suspicion

that Salas had violated § 11-309. The initial stop of Salas’s car was therefore

reasonable under the Fourth Amendment.

             2. Consent to Search

      Salas next argues that the ensuing search of Salas’s car violated the Fourth

Amendment because the stop was illegal and there was “no meaningful break or

                                         -11-
intervening circumstances between the stop and the consent to search.” Aplt. Br.

at 21. The government argues that Salas voluntarily consented to the search of

his vehicle after the stop had already ended and turned into a consensual

encounter.

      A vehicle may lawfully be searched if “a person in control of the vehicle

has given his voluntary consent to the search.” United States v. Lyons, 510 F.3d

1225, 1239 (10th Cir. 2007) (citations and internal quotation marks omitted).

Whether a person gave voluntary consent is a question of fact to be determined by

the totality of the circumstances and is reviewed for clear error. See id. The

government bears the burden of showing the consent was voluntary by (1)

proffering “clear and positive testimony that consent was unequivocal and

specific and freely given” and (2) proving that “this consent was given without

implied or express duress or coercion.” Id. (citations and internal quotation

marks omitted).

      Salas asks us to apply the three-factor test originally articulated in Brown v.

Illinois, 422 U.S. 590, 603–04 (1975), which requires the government to bear a

heavier burden when consent is given after an illegal stop. See United States v.

Fernandez, 18 F.3d 874, 881 (10th Cir. 1994). This higher standard requires the

government to prove, based on the totality of circumstances, “a sufficient

attenuation or break in the causal connection between the illegal [stop] and the

consent.” Fox, 600 F.3d at 1259 (citations and internal quotation marks omitted).

                                        -12-
Three factors inform our inquiry under this standard: (1) the temporal proximity

of the illegal stop and the consent; (2) any intervening circumstances; and (3) the

purpose and flagrancy of the officer’s unlawful conduct. Id. at 1259–60. But, as

we stated above, there was no unlawful seizure in this case, and therefore the

government need not bear that heavier burden. See Fernandez, 18 F.3d at 881;

United States v. Deases, 918 F.2d 118, 122 n.1 (10th Cir. 1990). Moreover, Salas

does not argue that the encounter between Gragg and Salas after Gragg returned

his papers was an unlawful detention, only that Gragg lacked reasonable suspicion

to stop Salas in the first place. Salas has therefore waived any argument that the

consent was tainted by the post-detention encounter between Gragg and Salas

when Gragg began questioning Salas. See United States v. Almaraz, 306 F.3d

1031, 1041 (10th Cir. 2002).

      The district court did not make any specific findings regarding the

voluntariness of Salas’s consent to search. But in denying the motion to suppress

the district court adopted the magistrate judge’s recommendations and report,

which found that Salas consented to the search. And we are “obliged to affirm

the district court’s suppression ruling if any reasonable view of the evidence

supports that ruling.” United States v. Cardenas-Alatorre, 485 F.3d 1111,

1119–20 (10th Cir. 2007) (citations and internal quotation marks omitted).

      After reviewing the record, we agree that Salas voluntarily consented to the

search of his car. The dash cam video indicates that after Gragg returned Salas’s

                                        -13-
documents, Salas opened the passenger door, exited the car, and shook Gragg’s

hand. Salas voluntarily answered Gragg’s questions regarding any illegal

possessions in the car. When Gragg asked if he could search the car, Salas

replied, “Sure.” Gragg asked him, “You sure you don’t mind?” Salas responded,

“No.” App. Dash Cam Video 15:03:00-15:03:20. 5 Salas’s relaxed demeanor and

the absence of any physical coercion or intimidating body language or tone by

Gragg lead us to the conclusion that Salas voluntarily consented to search the car.

      In sum, the district court did not clearly err in finding that Salas voluntarily

consented to the search of his car. Gragg’s search was accordingly lawful under

the Fourth Amendment.

      B. Section 3E1.1 Acceptance of Responsibility

      Salas also contends the district court erred in refusing to reduce the offense

level by one point for acceptance of responsibility under USSG § 3E1.1(b).

Because Salas preserved this objection at the sentencing hearing, we review the

district court’s legal conclusions under the Guidelines de novo and its findings of

fact for clear error, giving “great deference to the district court’s application of

the Guidelines to the facts.” United States v. Heredia-Cruz, 328 F.3d 1283, 1288


      5
         Salas implies that he was scared because of Gragg’s dog in the back of
the patrol car. But this fact alone is not sufficient to show undue coercion,
particularly given that the dog was in the back of the car and did not have any
contact with Salas. See United States v. Manjarrez, 348 F.3d 881, 886 (10th Cir.
2003) (drug dog howling loudly during trooper’s questioning did not render
consent involuntary).

                                         -14-
(10th Cir. 2003). Salas bears the burden of establishing that he is entitled to a §

3E1.1 reduction by a preponderance of the evidence. Id.

      If the defendant has an offense level of 16 or greater, § 3E1.1(b) provides

for an additional one-point decrease in the offense level for acceptance of

responsibility “upon motion of the government stating that the defendant has

assisted authorities in the investigation or prosecution of his own misconduct by

timely notifying authorities of his intention to enter a plea of guilty, thereby

permitting the government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently.” (emphasis

added). 6 We have held that § 3E1.1(b) confers on the government “a power, not a

duty, to file a motion when a defendant has timely notified prosecutors of an

intention to plead guilty.” United States v. Moreno-Trevino, 432 F.3d 1181, 1186

(10th Cir. 2005) (citations and internal quotation marks omitted). Thus, even if a

defendant timely notifies the government of his intent to plead guilty, “such

timeliness does not automatically entitle him to the government’s filing for the

additional adjustment.” Id. at 1186.

      Although the government’s discretion to file a § 3E1.1 motion is broad, it is

not unfettered. United States v. Evans, 744 F.3d 1192, 1199 (10th Cir. 2014). A

      6
         Note 6 to § 3E1.1 also states, “Because the Government is in the best
position to determine whether the defendant has assisted authorities in a manner
that avoids preparing for trial, an adjustment under subsection (b) may only be
granted upon a formal motion by the Government at the time of sentencing.”
USSG §3E1.1 cmt. n. 6 (emphasis added).

                                         -15-
district court may review the government’s decision not to file a § 3E1.1 motion

and grant a remedy if it finds the refusal was “(1) animated by an unconstitutional

motive, or (2) not rationally related to a legitimate government end.” Id.

(citations and internal quotation marks omitted); accord United States v. Blanco,

466 F.3d 916, 918 (10th Cir. 2006). We review the district court’s decision to

accept or reject the government’s refusal to file a § 3E1.1(b) motion for clear

error. Evans, 744 F.3d at 1199. 7

      Salas urges us to side with the decisions of two other courts of appeal

holding that a court may direct the prosecutor to file a § 3E1.1(b) motion even if

the prosecutor’s reason did not violate the Constitution. See United States v. Lee,

653 F.3d 170, 174–75 (2d Cir. 2011); United States v. Divens, 650 F.3d 343,

346–47 (4th Cir. 2011). But Lee and Divens are distinguishable from this case.

In Lee, the court held that the government’s refusal to move for a reduction under

§ 3E1.1(b) was based on an unlawful reason because it was undisputed that the


      7
         Most other circuits considering § 3E1.1(b) agree with our framework for
reviewing the government’s decision not to file a § 3E1.1(b) motion. See, e.g.,
United States v. Foreman, 2014 WL 945324 (4th Cir. Mar. 12, 2014), cert.
denied, 2014 WL 1392599 (2014); United States v. Davis, 714 F.3d 474, 475 (7th
Cir. 2013), cert. denied, 134 S. Ct. 462 (2013); United States v. Collins, 683 F.3d
697, 707 (6th Cir. 2012), cert. denied, 133 S. Ct. 571 (2012); United States v.
Moore, 683 F.3d 927, 930–31 (8th Cir. 2012); United States v. Johnson, 581 F.3d
994, 1000–07 (9th Cir. 2009); United States v. Beatty, 538 F.3d 8, 13 (1st Cir.
2008); United States v. Drennon, 516 F.3d 160, 162–63 (3d Cir. 2008); United
States v. Sloley, 464 F.3d 355, 360–61 (2d Cir. 2006); United States v. Gunn, 215
F. App’x 785, 791 (11th Cir. 2007).


                                        -16-
guilty plea “spared the government from preparing for trial.” 653 F.3d at 174.

And Divens concerned the government’s failure to file the § 3E1.1(b) motion

because the defendant refused to sign an appellate waiver as part of a plea

agreement where there was no evidence the government had been forced to

prepare for trial or that the appellate waiver would conserve trial resources. See

Divens, 650 F.3d at 347 n.2; Foreman, 2014 WL 945324, at *4 (noting that

Divens does not mandate the government to file a § 3E1.1(b) motion if the

defendant’s delay in pleading guilty required the government to prepare for trial). 8

      Here, in contrast, the government actually began trial preparations. Two

weeks after Salas filed the motion to suppress, the government notified him that,

in response to the motion to suppress, the government was beginning trial

preparations. The government never received a response, and the suppression

hearing took place six days after the date of the letter. Nearly one month after the

suppression hearing, the district court issued an order denying Salas’s motion to

suppress. Nevertheless, three days after the order denying his motion to suppress,

Salas filed proposed jury instructions and a proposed verdict form. The

government filed its trial brief three days later. It was only the day the

government filed its trial brief that Salas indicated he wanted to plead guilty.


      8
        We also note that several other courts of appeal have upheld the
government’s decision not to file a § 3E1.1(b) motion because the government
was forced to litigate a motion to suppress. See Collins, 683 F.3d at 704;
Drennon, 516 F.3d at 161–63.

                                         -17-
      Contrary to Salas’s arguments, the government’s stated reason for refusing

to file the § 3E1.1(b) motion—avoiding litigation and conserving resources—is

rationally related to the legitimate government interest in the efficient allocation

of its resources. It does not appear that the government ever received any

indication from Salas that it should refrain from or cease its trial preparations;

indeed, Salas filed jury instructions and a proposed verdict after the suppression

order issued and well after he had received notice the government was preparing

for trial, indicating a continued desire to proceed to trial. See United States v.

Drennon, 516 F.3d 160, 161 (3d Cir. 2008) (government did not abuse its

discretion in refusing to file § 3E1.1(b) motion because defendant did not notify

government of his intention to plead guilty until after suppression hearing and

government stated that the “large majority of the work to prepare for trial had

been done in connection with the suppression hearing”); cf. United States v.

Price, 409 F.3d 436, 443–44 (D.C. Cir. 2005) (defendant was entitled to

§ 3E1.1(b) reduction where very early in the case defendant indicated that he was

likely to plead guilty if he lost his motion to suppress and government did not

prepare for trial); United States v. Marquez, 337 F.3d 1203, 1212 (10th Cir. 2003)

(§ 3E1.1(b) reduction required where defendant “filed a non-frivolous motion to




                                         -18-
suppress, and there is no evidence that the government engaged in preparation

beyond that which was required for the motion”). 9

      We also see no basis to conclude that the government’s refusal to file the

§ 3E1.1(b) motion was animated by an unconstitutional motive. An

unconstitutional motive is one that is based on the defendant’s race, religion, or

gender. See Blanco, 466 F.3d at 919; Moreno-Trevino, 432 F.3d at 1185. Here,

there is no evidence the government’s stated reasons for preparing for trial were

motivated by any of these concerns. Nevertheless, Salas argues that the

government’s refusal was in retaliation for invoking his constitutional right to file

a motion to suppress. See Aplt. Br. at 28; Reply Br. at 13. But, as we stated in

Blanco, Salas “misunderstands the scope of our review.” 466 F.3d at 919. In

Blanco, we declined to consider whether the prosecutor acted for a

constitutionally impermissible reason where she withheld a § 3E1.1(b) motion

after the defendant asked to have the drugs at issue reweighed at an independent

facility. The prosecutor explained her decision to withhold the motion because

“the reweighing in itself required the government to draft an order, to make

arrangements . . . [and] to tie up an FBI agent for a number of hours taking the

evidence out of the evidence room, transporting it to an independent lab, [and]

      9
        We find Price and Marquez instructive even though both cases used the
version of the Guidelines prior to the 2003 amendment to § 3E1.1(b). The
previous version of § 3E1.1(b) required the district court to award the one-point
reduction if the defendant met the required criteria. See United States v.
Haggerty, 731 F.3d 1094, 1100 & n.4 (10th Cir. 2013).

                                        -19-
sitting and waiting.” Id. at 917. There, as here, the defendant argued that the

prosecutor’s decision unconstitutionally interfered with his constitutional rights.

But we held that the defendant’s argument was “beyond the scope of appellate

review.” Id. at 919.

      Even if we were to consider Salas’s contentions, we disagree with them.

Here, the prosecutor alerted Salas that he was beginning trial preparations in

response to the motion to suppress because he believed the motion evinced

Salas’s intent to go to trial. Faced with a hearing on Salas’s motion to suppress

scheduled only a few months before trial and having received no indication Salas

wanted to plead guilty or enter a conditional guilty plea, the government

continued to prepare for trial. We find that the government’s trial

preparations—and resulting refusal to file a § 3E1.1(b) motion—were not

motivated by an unconstitutional reason. See id. at 919 (“[W]hen a defendant

chooses to trade the exercise of [his constitutional rights with respect to his

criminal trial] for a reduction in sentence, this does not mean the government has

‘interfered’ with the right. Rather, it means that he has exercised the right in a

particular way: namely, by exchanging it for valuable consideration. . . . It is not

unconstitutional to deny him the benefit of the choice he did not make.”); see also

Corbitt v. New Jersey, 439 U.S. 212, 218 (1978) (“[N]ot every burden on the

exercise of a constitutional right, and not every pressure or encouragement to

waive such a right, is invalid.”).

                                         -20-
      Accordingly, where, as here, the government had actually begun preparing

for trial and there is no evidence that Salas indicated to the government he

intended to plead guilty until the government had already begun trial

preparations, we agree that the government’s decision to withhold the § 3E1.1(b)

motion was not arbitrary or unconstitutionally motivated.

      C. Section 3B1.2 Minor or Minimal Role

      Finally, Salas contends that the district court erred in refusing to reduce his

sentence under § 3B1.2 based on his status as a minor or minimal participant in

the crime. We review the sentencing court’s factual decisions for clear error and

its legal conclusions de novo. The defendant bears the burden of proving by a

preponderance of the evidence whether an adjustment under § 3B1.2 is warranted.

Martinez, 512 F.3d at 1275.

      The district court did not clearly err in concluding that Salas did not qualify

as a minor or minimal participant. Section 3B1.2 provides a range of mitigating

role adjustments for defendants whose part in the offense makes them

“substantially less culpable than the average participant.” USSG § 3B1.2 cmt.

n.3(A). The adjustment “is not applicable unless more than one participant was

involved in the offense.” Id. § 3B1.2 cmt. n.2. We have held that a “participant”

for purposes of § 3B1.2 need not be charged with the offense of conviction to be

considered as a participant under the Guidelines. See United States v. Bowen, 437

F.3d 1009, 1019 n.5 (10th Cir. 2006); see also Martinez, 512 F.3d at 1276 n.3

                                        -21-
(“Charged only with the amount of drugs he personally transported, Martinez of

course was not categorically precluded from receiving a minor participant

adjustment.” (citing USSG § 3B1.2 cmt. n.3(A)).

      Salas argues that the district court impermissibly concluded that it could

not award him a mitigating adjustment because he was only charged with his own

conduct. We disagree. Although the district court commented that Salas’s role in

the offense should be based only on his individual conduct if his “offense level

[is] based only on his individual conduct rather than . . . that of a larger

conspiracy or scheme,” the court also stated that “in addition to the lack of

verifiable participants, [Salas] has failed to show that his conduct was less

culpable than the other participants in this case.” App. 175. We therefore cannot

conclude that the court expressly based its reasoning on the wrong legal standard.

See Bowen, 437 F.3d at 1020 (declining to find that district court applied an

incorrect legal standard where the court denied motion for mitigating role without

mentioning lack of authority to rule, despite the court’s comment that it would be

“difficult to apply the mitigating role adjustment” where defendant was the only

person charged with the crime). We find that the district court’s comments at

sentencing “stopped short of holding” that it did not have the authority to grant

Salas a reduction under § 3B1.2(a) because he was only charged with his own

conduct. Id.




                                          -22-
      We also conclude that the district court did not commit clear error by

declining to grant an adjustment based on Salas’s argument that he was only a

courier for the drugs. The district court found that Salas had failed to present

sufficient evidence that other participants in the scheme existed or that he was

less culpable than any of the other participants. App. 175. At sentencing, the

only evidence Salas presented to support his claim were his own assertions that he

was a one-time courier and was far less culpable than the other participants. App.

158. But a “defendant’s own assertion that he was a minimal participant is not

enough to overcome the clearly erroneous standard.” United States v. Virgen-

Chavarin, 350 F.3d 1122, 1131 (10th Cir. 2003) (citations omitted).

      Furthermore, Salas’s courier status alone does not entitle him to an

adjustment for a minor or minimal role. Martinez, 512 F.3d at 1276 (“[W]e have

consistently ‘refused to adopt a per se rule allowing a downward adjustment based

solely on a defendant’s status as a drug courier.’” (quoting United States v.

Rangel-Arreola, 991 F.2d 1519, 1524 (10th Cir. 1993))); United States v. Eckhart,

569 F.3d 1263, 1276 (10th Cir. 2009). We have held that “[t]o debate whether

couriers as a group are less culpable would not be productive, akin to the old

argument over which leg of a three-legged stool is the most important leg.”

Martinez, 512 F.3d at 1276 (citations and internal quotation marks omitted).

Thus, even assuming that Salas had sufficiently proved the existence of other

participants in the scheme—an assumption with which the district court

                                         -23-
disagreed—Salas has not borne his burden of showing by a preponderance of the

evidence that he was substantially less culpable than any of the other participants

in the drug distribution network. The district court’s decision not to grant Salas

minor or minimal participant status was not clearly erroneous.

                                III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s denial of Salas’s

motion to suppress the drug evidence. We also AFFIRM Salas’s sentence.




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