United States v. Benito Hernandez

322 F.3d 592 UNITED STATES of America, Plaintiff-Appellee, v. Benito HERNANDEZ, Defendant-Appellant. No. 02-50155. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 8, 2002. Filed December 30, 2002. Amended March 5, 2003. COPYRIGHT MATERIAL OMITTED Todd W. Burns, Federal Public Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Patrick K. O'Toole, United States Attorney General (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Bruce R. Castetter (on the brief), Assistant United States Attorney, Roger W. Haines, Jr. (argued), Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; M. James Lorenz, District Judge, Presiding. D.C. No. CR-01-02712-MJL. Before: CANBY, GOULD and BERZON, Circuit Judges. 1 Opinion by Judge GOULD; Concurrence by Judge BERZON. ORDER 2 The opinion, filed December 30, 2002, is AMENDED as follows (the page and line references are to the slip opinion): 3 Page 15, line 12 [ 314 F.3d 430, 438 ]: Following the sentence "It was proper for us to use the canon of…

concurring.

I concur except as to footnote 3, which is not necessary to the decision.

Opinion by Judge GOULD; Concurrence by Judge BERZON.

ORDER

The opinion, filed December 30, 2002, is AMENDED as follows (the page and line references are to the slip opinion):

Page 15, line 12 [ 314 F.3d 430, 438 ]: Following the sentence “It was proper for us to use the canon of constitutional avoidance in Buckland.” add:

Page 15, line 12-16 [ 314 F.3d at 438 ]: Replace “And Harris does not by its terms supplant the fundamental canon of constitutional avoidance: Courts can and should continue to adopt statutory interpretations, when feasible, that will avoid serious constitutional issues.” with “Thus, Harris does not by its terms supplant the fundamental canon of constitutional avoidance: Courts can and should continue to adopt statutory interpretations, when feasible, that will avoid serious constitutional issues.”

With these changes, Appellant’s petition for panel rehearing and petition for rehearing en banc are denied. Fed. R.App. P. 35, 40.

OPINION

In this case, we must decide whether the defendant Hernandez’s presence in the rear seat of a vehicle containing commercial quantities of illegal drugs, in conjunction with all the other circumstances known to the arresting…