United States v. Ocampo

139 F. App'x 810

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 14, 2005
• Docket: No. 04-50521
• Status: Published

Opinion

MEMORANDUM

**

We have held in numerous border cases that routine handcuffing of a detainee as a safety precaution while escorting him to the secondary inspection office, even when combined with the frisking of the detainee and the confiscating of some of his personal items, does not convert a reasonable detention into an illegal arrest, nor does it convert a reasonable detention into an unreasonable one. See, e.g., United States v. Nava, 363 F.3d 942 (9th Cir.), cert. denied, — U.S. -, 125 S.Ct. 439, 160 L.Ed.2d 347 (2004); United States v. Hernandez, 322 F.3d 592 (9th Cir.2003) (as amended); United States v. Zaragoza, 295 F.3d 1025 (9th Cir.2002), cert. denied, 538 U.S. 956, 123 S.Ct. 1651, 155 L.Ed.2d 506 (2003); United States v. Bravo, 295 F.3d 1002, 1006 (9th Cir.2002), cert. denied, 538 U.S. 971, 123 S.Ct. 1775, 155 L.Ed.2d 530 (2003). These cases control our decision here. The detention here was reasonable.

Ocampo challenges the model grand jury instructions because they admonish the grand jury not to consider the “wisdom of the criminal laws” or to be “concerned about punishment.” The outcome is directly controlled by our recent en banc decision in United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir.2005) (en banc). For the same reasons, “the provisions of the model grand jury instructions challenged here are constitutional.” Id. at 1208.

Pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc), we “remand to the district court ... for the [limited] purpose of ascertaining whether the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Id. at 1074; United States v. Moreno-Hernandez, 397 F.3d 1248 (9th Cir.2005), amended by — F.3d -, ---, No. 03-30387, slip op. 7773, 7793-94 (9th Cir. July 5, 2005). On remand, the district judge shall give Ocampo an opportunity to opt out of resentencing if he is no longer interested in pursuing it. See Ameline, 409 F.3d at 1084.

AFFIRMED IN PART; REMANDED IN PART.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.