United States v. Omar Nava-Maytorel

FILED

NOT FOR PUBLICATION

SEP 07 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50213

Plaintiff-Appellee, D.C. No. 3:14-cr-02735-LAB

v.

MEMORANDUM*

OMAR ENRIQUE NAVA-MAYTOREL,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted August 29, 2016 Pasadena, California

Before: TASHIMA, SILVERMAN, and WATFORD, Circuit Judges.

Omar Enrique Nava-Maytorel appeals the district court’s denial of his

motions to suppress particular evidence and statements, and challenges the 72-

month sentence imposed following his bench-trial conviction for possession of

methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1),

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and aiding and abetting, in violation of 18 U.S.C. § 2. We have jurisdiction under

28 U.S.C. § 1291. We affirm the conviction, but remand for…

MEMORANDUM *

Omar Enrique Nava-Maytorel appeals the district court’s denial of his motions to suppress particular evidence and statements, and challenges the 72-month sentence imposed following his bench-trial conviction for possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1), and aiding and abetting, in violation of 18 U.S.C. § 2 . We have jurisdiction under 28 U.S.C. § 1291 . We affirm the conviction, but remand for resentencing.

Nava-Maytorel contends that he was unlawfully seized during his encounter with Border Patrol agents and, therefore, the district court erred by failing to suppress the evidence obtained during the subsequent search of his vehicle. We review de novo the district court’s ruling on a motion to suppress. See United States v. Evans, 786 F.3d 779, 784 (9th Cir. 2015). Contrary to Nava-Maytorel’s contention, the record reflects that the district court concluded that the approximately five-minute encounter was an investigative seizure supported by adequate suspicion. We agree.

At the suppression hearing, the district court credited testimony from Border Patrol agents regarding the observations that led them to…

dissenting:

The officers had reasonable suspicion to stop and question Nava-Maytorel, but I don’t think his consent to search the car was voluntarily given.

We apply a five-factor test when determining whether consent was voluntary, and here as in United States v. Washington, 490 F.3d 765 (9th Cir. 2007), two of the factors favor the defendant, two favor the government, and one is inapplicable. As in Washington , Nava-Maytorel had been seized for Fourth Amendment purposes when the officers asked for consent, and the officers never informed Nava-Maytorel that he had the right not to consent. (Nava-Maytorel had been seized because the officers obtained and did not return his immigration papers; in similar circumstances, we have held that a reasonable person would not feel free to terminate the encounter and leave. See id. at 775 ; United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997).) These two factors favor Nava-Maytorel. In the government’s favor, the officers did not have their guns drawn, and they did not tell Nava-Maytorel that they could obtain a search warrant if he refused to consent. The last of the five factors—whether the officers gave Miranda warnings—is…