United States v. Marco A. Pena-Noperi

141 F.3d 1182 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. United States of America, Plaintiff-Appellee, v. Marco A. PENA-NOPERI, Defendant-Appellant. No. 97-10283. D.C. No. CR-96-00356-1-WDB. United States Court of Appeals, Ninth Circuit. Submitted Mar. 10, 1998**. Decided Mar. 13, 1998. Appeal from the United States District Court for the District of Arizona William D. Browning, District Judge, Presiding. Before FLETCHER, BEEZER, and LEAVY, Circuit Judges. — 1 — MEMORANDUM* — 2 — Marco A. Pena-Noperi appeals his conviction following a conditional guilty plea for possession with the intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Pena-Noperi contends that the district court erred in denying his motion to suppress evidence seized following the stop of his vehicle. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court's legal conclusions de novo and its underlying factual findings for clear error. See United States v. Rodriguez-Sanchez, 23 F.3d 1488, 1492 (9th Cir.1994). We affirm. — 3 — Pena-Noperi contends that Border Patrol agents lacked reasonable suspicion to stop his vehicle because his actions prior to the stop were consistent with innocent behavior. We disagree. When Border Patrol agents came close to Pena-Noperi's vehicle, he made an abrupt exit from the highway past the point at which vehicles normally exit .1 See id. at 1493. He then slowed down to 35-40 miles per hour in a 55 mph zone as he repeatedly looked at the agents in his rearview mirror. See United States v. Magana, 797 F.2d 777, 781 (9th Cir.1986). This, in combination with the fact that Pena-Noperi was traveling in a dust-laden car at the time of shift change in an area known for smuggling aliens, provided reasonable suspicion to justify the stop. See United States v. Garcia-Barron, 116 F.3d 1305, 1307 (9th Cir.1997); Rodriguez-Sanchez, 23 F.3d at 1493.2 — 4 — AFFIRMED. Footnotes [-s-s] ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4 [-s] * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3 [1] We reject Pena-Noperi's contention that because the agents were able to follow him off the exit, their testimony regarding the abruptness of his exit was inherently incredible. We discern no clear error in the district court's finding. Cf. Rodriguez-Sanchez, 23 F.3d at 1490 (noting that agents followed defendant as he cut across two lanes of traffic and made an abrupt exit off the highway) [2] We need not consider Pena-Noperi's contention that the agents' testimony concerning a suspicious shape in Pena-Noperi's rear window was incredible, as the remaining factors are sufficient to justify the stop