NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50252
Plaintiff-Appellee, D.C. Nos. 5:19-cr-00091-JGB-3 v.
CARLOS ALBERTO ZAVALA-HUERTA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding
Argued and Submitted September 14, 2021 Pasadena, California
Before: GOULD, BERZON, and COLLINS, Circuit Judges.
Defendant-Appellant Carlos Zavala-Huerta appeals his criminal convictions
for: (1) conspiracy to possess with the intent to distribute at least fifty grams of
methamphetamine; and (2) possession with the intent to distribute at least fifty
grams of methamphetamine. Zavala also appeals his 120-month sentence on these
counts. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. affirm.
1. Zavala argues that the district court erroneously ruled that law enforcement
lacked the reasonable suspicion needed to detain him before his arrest. We review
de novo district court rulings on reasonable suspicion. Ornelas v. United States,
517 U.S. 690, 691 (1996); United States v. Zapien, 861 F.3d 971, 974 (9th Cir.
2017). Law enforcement may detain a suspect if they have reasonable and
articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21–22 (1968).
In determining whether reasonable suspicion exists, we consider the “totality of the
circumstances of each case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534
U.S. 266, 273 (2002) (internal quotation marks and citations omitted). Law
enforcement officers can draw on their experience and training to make inferences
from and deductions about the cumulative information available to them that might
elude an untrained person. United States v. Cortez, 449 U.S. 411, 418–19 (1981).
Conduct ordinarily viewed as innocent on a stand-alone basis may, when
aggregated, form the basis of reasonable suspicion. Arvizu, 534 U.S. at 274–75;
United States v. Valdes-Vega, 738 F.3d 1074, 1080 (9th Cir. 2013) (en banc).
The record establishes that law enforcement knew of several facts that gave
them a particularized and objective basis for suspecting that Zavala was engaging
in methamphetamine trafficking. Wiretaps revealed that certain conspirators
2 arranged a $10,000 loan for a methamphetamine transaction. Law enforcement
seized $9,900 from a co-conspirator soon thereafter. Officers searched a co-
conspirator’s home and found a methamphetamine lab, large sums of cash, and
drugs. An undercover officer used a co-conspirator’s cell phone to arrange a
methamphetamine transaction at a specific location. A co-conspirator called the
undercover officer upon arriving at this location with Zavala, who was driving a
separate vehicle, and both the co-conspirator and Zavala parked in the location
directed by the officer, near a Nissan Armada in a restaurant parking lot. The co-
conspirator motioned for Zavala to re-position his vehicle and Zavala complied.
And the officers knew from their training and experience that co-conspirators
sometimes arrive at drug transactions in separate vehicles.
As such, the officers had the reasonable suspicion necessary to detain
Zavala. See Arvizu, 534 U.S. at 273–75; Cortez, 449 U.S. at 419; United States v.
Mayer, 560 F.3d 948, 956 (9th Cir. 2009) (stating that we “may affirm the denial
of a motion to suppress on any basis fairly supported by the record” (quotation
marks and citation omitted)).1
1 Zavala maintained for the first time at oral argument that trial evidence may be considered in determining whether a motion to suppress was properly denied only if the motion to suppress was renewed during trial. Our cases do not reflect that distinction. See United States v. Sanford, 673 F.2d 1070, 1071–72 (9th Cir. 1982); see also United States v. Thomas, 211 F.3d 1186, 1191–92 (9th Cir. 2000); United States v. Wilson, 7 F.3d 828, 833 (9th Cir. 1993). We have relied on trial evidence to uphold denial of a motion to suppress whether or not the motion was renewed.
3 2. Zavala contends that officers detained him for an unreasonably long time
and lacked probable cause to search his vehicle. But his arguments to that effect
consist of bare assertions unsupported by citations to the record or legal analysis.
As a result, these issues are arguably waived. See Greenwood v. F.A.A., 28 F.3d
971, 977 (9th Cir. 1994) (explaining that we “will not manufacture arguments for
an appellant, and a bare assertion does not preserve a claim” (citations omitted)).
In any case, Zavala was only detained for approximately ten minutes before a drug
detection dog arrived, during which time the officers questioned Zavala about the
contents of his car; that was a reasonable time for officers to effectuate their
purpose of investigating whether Zavala was in possession of methamphetamine.
See United States v. Sharpe, 470 U.S. 675, 686 (1985). And the officers had
probable cause to search Zavala’s vehicle after the dog alerted to narcotics hidden
therein, a point Zavala has conceded. See Florida v. Harris, 568 U.S. 237, 248–50
(2013).
3. Zavala maintains that the district court improperly denied him safety valve
relief based on an incorrect factual finding that he failed to truthfully provide the
government with all of the information and evidence he had on his offenses. We
examine such factual findings for clear error, United States v. Mejia-Pimental, 477
F.3d 1100, 1103 (9th Cir. 2007), which exists only when the district court takes an
impermissible view of the evidence, United States v. Hinkson, 585 F.3d 1247,
4 1259–61 (9th Cir. 2009) (en banc).
Defendants are eligible for safety valve relief from mandatory minimum
sentences only if, inter alia, they can establish by a preponderance of the evidence
that they truthfully provided the government with all of the information and
evidence that they have regarding their offenses. See 18 U.S.C. § 3553(f)(5);
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50252
Plaintiff-Appellee, D.C. Nos. 5:19-cr-00091-JGB-3 v.
CARLOS ALBERTO ZAVALA-HUERTA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding
Argued and Submitted September 14, 2021 Pasadena, California
Before: GOULD, BERZON, and COLLINS, Circuit Judges.
Defendant-Appellant Carlos Zavala-Huerta appeals his criminal convictions
for: (1) conspiracy to possess with the intent to distribute at least fifty grams of
methamphetamine; and (2) possession with the intent to distribute at least fifty
grams of methamphetamine. Zavala also appeals his 120-month sentence on these
counts. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. affirm.
1. Zavala argues that the district court erroneously ruled that law enforcement
lacked the reasonable suspicion needed to detain him before his arrest. We review
de novo district court rulings on reasonable suspicion. Ornelas v. United States,
517 U.S. 690, 691 (1996); United States v. Zapien, 861 F.3d 971, 974 (9th Cir.
2017). Law enforcement may detain a suspect if they have reasonable and
articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21–22 (1968).
In determining whether reasonable suspicion exists, we consider the “totality of the
circumstances of each case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534
U.S. 266, 273 (2002) (internal quotation marks and citations omitted). Law
enforcement officers can draw on their experience and training to make inferences
from and deductions about the cumulative information available to them that might
elude an untrained person. United States v. Cortez, 449 U.S. 411, 418–19 (1981).
Conduct ordinarily viewed as innocent on a stand-alone basis may, when
aggregated, form the basis of reasonable suspicion. Arvizu, 534 U.S. at 274–75;
United States v. Valdes-Vega, 738 F.3d 1074, 1080 (9th Cir. 2013) (en banc).
The record establishes that law enforcement knew of several facts that gave
them a particularized and objective basis for suspecting that Zavala was engaging
in methamphetamine trafficking. Wiretaps revealed that certain conspirators
2 arranged a $10,000 loan for a methamphetamine transaction. Law enforcement
seized $9,900 from a co-conspirator soon thereafter. Officers searched a co-
conspirator’s home and found a methamphetamine lab, large sums of cash, and
drugs. An undercover officer used a co-conspirator’s cell phone to arrange a
methamphetamine transaction at a specific location. A co-conspirator called the
undercover officer upon arriving at this location with Zavala, who was driving a
separate vehicle, and both the co-conspirator and Zavala parked in the location
directed by the officer, near a Nissan Armada in a restaurant parking lot. The co-
conspirator motioned for Zavala to re-position his vehicle and Zavala complied.
And the officers knew from their training and experience that co-conspirators
sometimes arrive at drug transactions in separate vehicles.
As such, the officers had the reasonable suspicion necessary to detain
Zavala. See Arvizu, 534 U.S. at 273–75; Cortez, 449 U.S. at 419; United States v.
Mayer, 560 F.3d 948, 956 (9th Cir. 2009) (stating that we “may affirm the denial
of a motion to suppress on any basis fairly supported by the record” (quotation
marks and citation omitted)).1
1 Zavala maintained for the first time at oral argument that trial evidence may be considered in determining whether a motion to suppress was properly denied only if the motion to suppress was renewed during trial. Our cases do not reflect that distinction. See United States v. Sanford, 673 F.2d 1070, 1071–72 (9th Cir. 1982); see also United States v. Thomas, 211 F.3d 1186, 1191–92 (9th Cir. 2000); United States v. Wilson, 7 F.3d 828, 833 (9th Cir. 1993). We have relied on trial evidence to uphold denial of a motion to suppress whether or not the motion was renewed.
3 2. Zavala contends that officers detained him for an unreasonably long time
and lacked probable cause to search his vehicle. But his arguments to that effect
consist of bare assertions unsupported by citations to the record or legal analysis.
As a result, these issues are arguably waived. See Greenwood v. F.A.A., 28 F.3d
971, 977 (9th Cir. 1994) (explaining that we “will not manufacture arguments for
an appellant, and a bare assertion does not preserve a claim” (citations omitted)).
In any case, Zavala was only detained for approximately ten minutes before a drug
detection dog arrived, during which time the officers questioned Zavala about the
contents of his car; that was a reasonable time for officers to effectuate their
purpose of investigating whether Zavala was in possession of methamphetamine.
See United States v. Sharpe, 470 U.S. 675, 686 (1985). And the officers had
probable cause to search Zavala’s vehicle after the dog alerted to narcotics hidden
therein, a point Zavala has conceded. See Florida v. Harris, 568 U.S. 237, 248–50
(2013).
3. Zavala maintains that the district court improperly denied him safety valve
relief based on an incorrect factual finding that he failed to truthfully provide the
government with all of the information and evidence he had on his offenses. We
examine such factual findings for clear error, United States v. Mejia-Pimental, 477
F.3d 1100, 1103 (9th Cir. 2007), which exists only when the district court takes an
impermissible view of the evidence, United States v. Hinkson, 585 F.3d 1247,
4 1259–61 (9th Cir. 2009) (en banc).
Defendants are eligible for safety valve relief from mandatory minimum
sentences only if, inter alia, they can establish by a preponderance of the evidence
that they truthfully provided the government with all of the information and
evidence that they have regarding their offenses. See 18 U.S.C. § 3553(f)(5);
Mejia-Pimental, 477 F.3d at 1103–04. The evidence available to the district court
during sentencing cast some doubt on whether Zavala had done so here.
Initially, this evidence indicated that Zavala’s statements concerning the
individual who supplied him with methamphetamine to take from Mexico to the
United States were implausible or incomplete. Zavala’s defense at trial had been
that he was coerced by a high-level drug trafficker into carrying drugs across the
border. But the government’s expert witness on drug trafficking investigations
stated that couriers who, like Zavala, are entrusted with taking drugs to the United
States and bringing money back to Mexico are considered more trustworthy by
drug traffickers, and so are unlikely to be individuals who were duped or pressured
into bringing the drugs across the border. And, contrary to Zavala’s statements at
trial, one of his co-conspirators testified that Zavala told the co-conspirator
methamphetamine was hidden in the gas tank of his vehicle and helped the co-
conspirator retrieve the drugs from the car.
As such, the district court’s factual finding that Zavala failed to truthfully
5 provide the government with all the information he had on his offenses is not
clearly erroneous. See Hinkson, 585 F.3d at 1259–61.
AFFIRMED.