Rico

MEMORANDUM *

Defendant-Appellant Sam Joseph Rico was convicted of two counts of transportation of illegal aliens in violation of 8 U.S.C. §§ 1324 (a)(1)(A)(ii) and (B)(iii). Rico challenges the legality of the stop and appeals the district court’s denial of his motion to suppress. The government cross-appeals the sentence.

We affirm the denial of the motion to suppress and remand for resentencing.

I.

Rico argues that the stop of the vehicle was not supported by reasonable suspicion. Whether an investigatory stop is supported by reasonable suspicion is a mixed question of fact and law that is reviewed de novo. United States v. Diaz-Juarez, 299 F.3d 1138, 1140 (9th Cir.2002). The underlying factual determinations are reviewed for clear error. Id.

The Fourth Amendment’s protection against unreasonable searches and seizures extends to investigatory stops of vehicles by the Border Patrol; such stops must be supported by reasonable suspicion. See United States v. Brignoni-Ponce, 422 U.S. 873, 881-83 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975). In determining whether the agent had reasonable suspicion of criminal activity, courts look at the totality of the circumstances. United…