United States v. Nelson Reynero-Serna

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 27, 2019
• Docket: 19-40094
• Status: Unpublished

Opinion

Case: 19-40094 Document: 00515216271 Page: 1 Date Filed: 11/27/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED November 27, 2019 No. 19-40094 Lyle W. Cayce Summary Calendar Clerk

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

NELSON REYNERO-SERNA,

Defendant−Appellant.

Appeal from the United States District Court for the Southern District of Texas No. 5:18-CR-335-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges. PER CURIAM: *

Nelson Reynero-Serna entered a conditional guilty plea to conspiracy to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 19-40094 Document: 00515216271 Page: 2 Date Filed: 11/27/2019

No. 19-40094

transport aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(I), and (II), re- serving the right to appeal the adverse ruling on his motion to suppress. He appeals, claiming that the officer who initiated the traffic stop lacked reasona- ble suspicion that he had committed a violation under TEX. TRANSP. CODE ANN. § 545.363(a) and that no other exception to the warrant requirement of the Fourth Amendment justifies the initial stop.

Reynero-Serna failed to object to the magistrate judge’s report recom- mending denial, which was adopted by the district court without a de novo review. Accordingly, we review for plain error only. See United States v. Seeley, 331 F.3d 471, 471 (5th Cir. 2003), abrogated on other grounds by Byrd v. United States, 138 S. Ct. 1518, 1531 (2018). To show plain error, Reynero- Serna must first establish a forfeited error that is clear or obvious. Puckett v. United States, 556 U.S. 129, 135 (2009).

The legality of a traffic stop is examined under the two-pronged analysis in Terry v. Ohio, 392 U.S. 1 (1968). United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2003) (en banc). This appeal focuses solely on the first Terry prong—whether the officer’s decision to conduct a stop was justified at its inception. See id.

Texas law provides, “An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.” TEX. TRANSP. CODE ANN. § 545.363(a). “Driving at a speed that is less than the posted limit is not, by itself, sufficient for reasonable suspicion; a violation occurs only when the normal and reasonable movement of traffic is impeded.” Delafuente v. State, 414 S.W.3d 173, 178 (Tex. Crim. App. 2013); see also Richardson v. State, 39 S.W.3d 634, 638−39 (Tex. App.—Amarillo 2000, no pet.).

2 Case: 19-40094 Document: 00515216271 Page: 3 Date Filed: 11/27/2019

Reynero’s reliance on Richardson is misplaced because its circumstances are distinguishable for the reasons found by the district court. Given the dearth of authority on whether a single vehicle constitutes traffic, see United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015), the ambiguity in the statute, and the danger observed by the officer, the officer could have reasona- bly believed that he witnessed a violation of Section 545.363(a), see Heien v. North Carolina, 574 U.S. 54, 57, 65−66 (2014); cf. United States v. Alvarado- Zarza, 782 F.3d 246, 249−50 (5th Cir. 2015).

Accordingly, Reynero-Serna fails to show that the district court clearly or obviously erred in denying suppression. See Puckett, 556 U.S. at 135; United States v. Michelletti, 13 F.3d 838, 841 (5th Cir. 1994) (en banc). The judgment is therefore AFFIRMED.