United States v. Hernandez

Opinion

UNITED STATES COURT OF APPEALS Filed 12/17/96 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 95-3401 v. (D.C. No. 95-CR-40024) (D. Kan.) ROBERT HERNANDEZ,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. Submitted without oral argument.

Robert Hernandez pled guilty to possession with intent to distribute

marijuana, preserving his right to appeal the district court’s denial of his motion

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions 10th Cir. R. 36.3. to suppress his statement and other evidence. In reviewing the district court’s

refusal to suppress the evidence, we must view the evidence in the light most

favorable to the government, and we are required to uphold the court’s findings of

fact unless they are clearly erroneous. United States v. Smythe, 84 F.3d 1240,

1242 (10th Cir. 1996).

The district court denied the motion to suppress in a lengthy Memorandum

and Order filed May 18, 1995. Since that time, this court decided United States v.

Botero-Ospina, 71 F.3d 783 (10th Cir. 1995) (en banc), which clearly supports the

district court’s conclusion that the stop in the present case was not pretextual.

We have reviewed Mr. Hernandez’ other contentions in light of the record, and

we are not persuaded that the district court erred. We therefore AFFIRM the

judgment of the district court substantially for the reasons given by the district

court in its Memorandum and Order, as modified by our opinion in Botero-

Ospina. 1

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

On November 13, 1996, Mr. Hernandez filed a Motion for Appointment of 1

Counsel which we construe as a motion asking us to replace his present counsel. We deny the motion.

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