FILED

NOT FOR PUBLICATION

APR 22 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50293

Plaintiff-Appellee, D.C. No. 8:17-cr-00145-AG-1

v.

MEMORANDUM*

JUAN MORENO, AKA Moose, AKA Juan Crisanto Moreno,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding

Submitted, Submission Deferred April 14, 2020** Resubmitted April 22, 2020 Pasadena, California

Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges.

Juan Moreno appeals his conviction for being a felon in possession of

ammunition and the district court’s denial of his motion to correct his sentence

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under Federal Rule of Criminal Procedure 35(a). We affirm. We agree that the

challenged supervised release condition is unconsitutionally vague, and we remand

to the district court for modification of the condition. Because the parties are

familiar with the history of this case, we need not recount it here.

“We review the district court's denial of [a] motion to suppress de novo and

the underlying factual findings for clear error.” United States v. Zapien, 861 F.3d

971, 974 (9th Cir. 2017) (citing United States v. Rodriguez-Preciado, 399 F.3d

1118, 1125, amended by 416 F.3d 939 (9th Cir. 2005)). “The clear error standard

is deferential, and is not met unless the reviewing court is left with a definite and

firm conviction that a mistake has been committed.” In re Zermeno-Gomez, 868

F.3d 1048, 1052 (9th Cir. 2017) (internal quotation marks and citation omitted).

“[W]e review the district court's determination of whether [a defendant’]s prior

conviction was a controlled substance offense de novo.” United States v. Brown,

879 F.3d 1043, 1047 (9th Cir. 2018). We review constitutional challenges to

supervised release conditions de novo. United States v. Watson, 582 F.3d 974, 981

(9th Cir. 2009).

1. The district court did not commit reversible error in denying the

suppression motion. In order to justify a Terry stop, an officer must have

reasonable suspicion that a suspect is engaging in criminal activity. Terry v. Ohio,

2 392 U.S. 1, 21 (1968). Here, the stop was predicated on an encounter the previous

day in which officers believed Moreno had fled from them and dropped a backpack

containing a digital scale associated with drug transactions. Moreno and the

officer provided different accounts, and portions of the officer’s testimony were

shown to be questionable or incorrect. However, given the record and the

deference owed to inferences drawn by the district court, see United States v.

Valdes-Vega, 738 F.3d 1074, 1077 (9th Cir. 2013) (en banc), the district court did

not commit clear error in crediting the testimony and concluding that the Terry

stop was justified. The officer testified that Moreno was the same individual the

police had encountered the previous day, and a body cam video showed other

officers stating to the defendant that they had seen him the previous day. Moreno

disputes that he was the individual that the officers had encountered. However, the

district court reasonably resolved that dispute in the officer’s favor. And although

an officer’s good faith alone is not enough to warrant a stop, Terry, 392 U.S. at 22,

“[a] mistaken premise can furnish grounds for a Terry stop, if the officers do not

know that it is mistaken and are reasonable in acting upon it.” United States v.

Garcia-Acuna, 175 F.3d 1143, 1147 (9th Cir. 1999) (internal quotation marks and

citations omitted). Therefore, because the officer could point to specific and

articulable facts to support his belief that Moreno was the individual he had

3 observed the day before and there was reason to believe he was involved in

criminal activity, it was not reversible error for the district court to conclude the

Terry stop was justified to investigate the officer’s suspicion. See United States v.

Hensley, 469 U.S. 221, 229 (1985).

2. The district court did not err in concluding that the officers had

reasonable suspicion to conduct a frisk. The officer testified that he heard another

officer ask Moreno if he had anything illegal on him, and that Moreno answered

“yes.” Moreno denies making this statement. In addition, the officer testified that

he saw the butt of a gun sticking out from Moreno’s pocket, and the butt of the gun

is visible on body cam footage from the day of the arrest. The district court

credited the officer’s account. Thus, given the totality of the circumstances, see

Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016) (reasonable suspicion

considers the totality of the circumstances), the district court did not commit

reversible error in concluding that the officers had reasonable suspicion for the

frisk, see Terry, 392 U.S. at 24 (a frisk is justified upon a reasonable suspicion that

a suspect “is armed and presently dangerous to the officer or to others”).

In short, given our deferential standard of review, we conclude that the

district court did not commit reversible error in denying the suppression motion.

3. The district court did not commit reversible error in denying Moreno’s

motion to correct his sentence pursuant to Fed. R. Crim P. 35(a). The motion was

4 predicated on Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018), but that decision

was vacated and withdrawn, Lorenzo v. Whitaker, 752 Fed. App’x 482 (9th Cir.

2019). Therefore, because California’s methamphetamine definition has not been

found overbroad, the district court did not clearly err in considering Moreno’s

previous state methamphetamine convictions when calculating the offense level.

4. We vacate the challenged supervised release condition because it is

overbroad in one respect and fails to provide the requisite determinate guidance to

both Moreno and the probation officer. See United States v. Evans, 883 F.3d 1154,

1164 (2019). The challenged supervised release condition is unconstitutionally

vague, and we remand to the district court.

AFFIRMED in part; REMANDED in part.

5

FILED

United States v. Moreno, No. 18-50293

APR 22 2020

W. Fletcher, J., dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I dissent on the grounds that the district court should have granted the

motion to suppress.