United States v. Luis Arenas-Lopez

concurring in part and dissenting in part:

I agree with the majority’s conclusion that the district court was not required to hold an evidentiary hearing, as it did not reject the magistrate judge’s factual findings. I respectfully dissent, however, from the majority’s resolution of Arenas-Lopez’s claim that the district court erred in determining that probable cause existed to arrest the defendant.

I disagree that Arenas-Lopez cabined his argument to the sole issue of whether the district court erred in considering and clearly erred 1 in finding certain facts and, therefore, waived any argument that the facts here are insufficient to support probable cause. Rather, Arenas-Lopez broadly framed the issue presented to this panel as whether the district court erred in determining there was probable cause to arrest the defendant. Tellingly, the government does not parse Arenas-Lopez’s argument like the majority does and, to the contrary, treats Arenas-Lopez’s brief as arguing broadly that insufficient facts supported the district court’s finding of probable cause. The government devotes its brief to explaining how the facts here do support probable cause and relegates to footnotes…

MEMORANDUM **

Arenas-Lopez appeals from his conviction for conspiracy to possess marijuana *172 with intent to distribute under 21 U.S.C. §§ 846 , 841(a)(1) and 841(b)(1)(B)(vii). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Arenas-Lopez’s argument focuses only-on the district court’s denial of his motion to suppress under the Fourth Amendment. He argues that his warrantless arrest was not supported by probable cause.

Arenas-Lopez’s opening brief does not present any argument that the facts found by the district court are insufficient to support probable cause. Therefore, any argument dealing with whether the facts found justify probable cause to stop and arrest Arenas-Lopez has been waived. Fleischer Studios, Inc. v. A. V.E.L.A., Inc., 654 F.3d 958, 965 (9th Cir.2011). Instead, Arenas-Lopez argues that the district court erred in considering and clearly erred in finding certain facts. Arenas-Lopez asserts that when these facts are removed from the analysis, there is no probable cause. Therefore, in addressing his argument, we limit ourselves to the narrow question of whether the district court erred by considering or clearly erred by finding the disputed…

FILED

NOT FOR PUBLICATION JUN 14 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10141

Plaintiff - Appellee, D.C. No. 4:08-cr-00633-CKJ-

BPV-

v.

LUIS ARENAS-LOPEZ, MEMORANDUM *

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted March 16, 2012 San Francisco, California

Before: WALLACE and BEA, Circuit Judges, and BENNETT, District Judge.**

Arenas-Lopez appeals from his conviction for conspiracy to possess

marijuana with intent to distribute under 21 U.S.C. §§ 846, 841(a)(1) and

841(b)(1)(B)(vii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Mark W. Bennett, District Judge for the Northern District of Iowa, sitting by designation. Arenas-Lopez’s argument focuses only on the district court’s denial of…