United States v. Efren Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 29, 2019
• Docket: 18-50291
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 29 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50291

Plaintiff-Appellee, D.C. No. 2:17-cr-00403-SVW-1 v.

EFREN JOSHUA HERNANDEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted August 16, 2019 Pasadena, California

Before: SCHROEDER and R. NELSON, Circuit Judges, and LEFKOW,** District Judge.

Appellant Efren Hernandez entered a conditional guilty plea to being a felon

in possession of a firearm and ammunition, reserving his right to appeal the district

court’s denial of his motion to suppress. On appeal, Hernandez raises a number of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. challenges to Officer Hector Mendoza’s reasonable, articulable suspicion to stop

and frisk him, but the parties agree the oral pronouncement of Hernandez’s

sentence controls. We affirm in part and remand with instructions to amend the

written judgment to conform with the oral pronouncement.

1. We review de novo the denial of a motion to suppress evidence but

review for clear error the district court’s underlying findings of fact. United States

v. Crapser, 472 F.3d 1141, 1145 (9th Cir. 2007). We find no clear error of fact.

Whether a stop-and-frisk is lawful is a fact-driven inquiry, assessed under the

totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002);

United States v. Williams, 846 F.3d 303, 308 (9th Cir. 2016). The reasonable

suspicion inquiry is “a commonsense, nontechnical conception that deals with the

factual and practical considerations of everyday life on which reasonable and

prudent men, not legal technicians, act.” United States v. Valdes-Vega, 738 F.3d

1074, 1078 (9th Cir. 2013) (internal quotation marks and brackets omitted).

Officer Mendoza was aware of the following facts before he stopped and

frisked Hernandez: (1) he was part of a team of officers responding to a 911 call

regarding an armed individual threatening people in room 443; (2) knocks on the

door of room 443 went unanswered; (3) officers had not yet identified the subject of

the 911 call; (4) frisks of others nearby left unresolved whether a gun was still

present in the area; (5) the Olympic Hotel was a known stronghold of the Crazy

2 Riders gang; (6) Hernandez was a Crazy Riders gang member who was on probation;

and (7) Hernandez climbed the stairs to the fourth floor, made eye contact with

Officer Mendoza, and immediately turned around. Although Hernandez isolates

each fact in an attempt to undercut Officer Mendoza’s actions, the reasonable

suspicion inquiry is not a “divide-and-conquer analysis” and must take into account

the totality of the circumstances. Arvizu, 534 U.S. at 274. Under these

circumstances, we conclude Officer Mendoza had reasonable, articulable suspicion

to stop and frisk Hernandez.

2. The parties agree the oral pronouncement of Hernandez’s sentence controls

over the written judgment. Therefore, we remand with instructions to amend the

written judgment to conform with the orally pronounced conditions of supervised

release. United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015).

AFFIRMED in part and REMANDED in part.