United States v. Toribio Olivas, 25 F.3d 1059, 10th Cir. (1994)

25 F.
3d 1059
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,

v.
Toribio OLIVAS, Defendant-Appellant.
No. 92-3419.
United States Court of Appeals, Tenth Circuit.

April 28, 1994.
ORDER AND JUDGMENT12

Before EBEL and KELLY, Circuit Judges, and COOK, District Judge.3
Mr. Olivas appeals his conviction and sentence for possession with intent
to distribute less than fifty kilograms of marijuana, 21 U.S.C. 841(a)(1),
(b)(1)(D). He was sentenced to thirty-seven months and fined $1,000 with
three years of supervised release. His total offense level included a twolevel enhancement for obstruction of justice resulting from his testimony
at his codefendant's trial, U.S.S.G. 3C1.1. On appeal, Mr. Olivas
challenges (1) his continued detention after the driver of his vehicle
received a traffic citation, (2) the voluntariness of his consent to search the
vehicle, (3) the two-level enhancement for obstruction of justice, and (4)
the failure to grant a two-level downward adjustment for acceptance of
responsibility. Our jurisdiction arises under 28 U.S.C. 1291 and 18 U.S.C.
3742. We affirm the conviction, but remand for further findings on the
two-level enhancement for obstruction of justice and reconsideration of
the acceptance of responsibility issue.
Background
1
A Kansas state highway patrol trooper stopped the vehicle in which Mr. Olivas
was a passenger for speeding and passing without signalling. The driver of the
vehicle and codefendant, Mr. Alvarado, was cited. The trooper asked additional
questions of the pair, and searched the vehicle based upon consent. During the
search, a canine alerted to the presence of drugs. The search led to the
discovery of a pistol on the front seat, ammunition, and several packages of
marijuana in a secret compartment in the gas tank.
Mr. Olivas sought to suppress the marijuana, arguing (1) the stop was
pretextual, (2) once the citations had been issued, the trooper lacked reasonable
suspicion or probable cause for further investigation, (3) the consent to search
was involuntary, and (4) the trooper exceeded the scope of the consent, even if
valid, in dismantling the vehicle. Aplt. Br. at 35-42. At the suppression hearing,
the government conceded that the validity of its search depended wholly upon
the consent to search. II R. 66-69. The court interpreter translated the Spanish
consent to search form as "consent to register." II R. 61-62. The district court
denied the suppression motion without making factual findings. II R. 72.
In our first order and judgment, we remanded to the district court for findings
supporting its order denying suppression. We have now reviewed the
supplemental record.
Discussion
4
The district court found that the stop of the vehicle driven by Mr. Alvarado for
speeding and passing without signalling was not pretextual. I R.S. doc. 114 at
7. The district court concluded that such a stop was objectively reasonable, and
in accord with Kansas Highway Patrol policy of stopping for speeds of five
miles-per-hour over the limit. The district court credited the state trooper's
testimony that he routinely stops vehicles that travel 71 mph in a 65 mph zone
and that pass without signalling. We have reviewed the record and conclude
that the district court's findings are not clearly erroneous. See United States v.
Harris, 995 F.2d 1004, 1005 (10th Cir.1993).
According to the district court, the officer issued the citation and warnings to
Mr. Alvarado, returned the various documents, and then obtained codefendant
Olivas's consent to search the vehicle. The record reflects that Mr. Alvarado
agreed to answer the trooper's questions while still in the patrol car. II R. 17,
20. Mr. Alvarado remained in the patrol car while the trooper proceeded to the
Defendants' vehicle to ask Mr. Olivas if he had any drugs, weapons or large
amounts of cash. Id. at 20. The trooper then obtained Mr. Olivas's consent to
the search. Mr. Olivas was asked to step out of his vehicle and, Mr. Alvarado,
still in or near the patrol car, was told to approach the officer. Id. at 21.
The district court characterized the interaction, which ultimately led to Mr.
Olivas's consent to search the vehicle, as "an ordinary consensual encounter," I
R.S. doc. 114 at 8, which would be beyond the scope of the Fourth
Amendment. See Florida v. Bostick, 111 S.Ct. 2382, 2387 (1991); United
States v. McKneely, 6 F.3d 1447, 1451 (10th Cir.1993). "[A] reasonable person
under these circumstances would believe that he was free to leave or disregard
the officer's request for information." I R.S. doc. 114 at 8. Even though Mr.
Alvarado remained in the patrol car while the trooper sought Mr. Olivas's
consent, no evidence suggests that Mr. Alvarado was compelled to do so,
thereby preventing Mr. Olivas from leaving or disregarding the trooper's
questioning and request for consent. This case differs from United States v.
Guzman, 864 F.2d 1512 (10th Cir.1988), in which the officer, lacking
reasonable suspicion, extended questioning beyond that necessary to issue a
citation, while retaining the motorist's documents. Id. at 1519. The Defendants'
documents had been returned and the district court's determination that Mr.
Olivas could have left or disregarded the officer's request for consent to search
is not clearly erroneous. The record does not portray a coercive show of
authority which would undermine this finding. See United States v. Turner, 928
F.2d 956, 959 (10th Cir.), cert. denied, 112 S.Ct. 230 (1991); United States v.
Werking, 915 F.2d 1404, 1409 (10th Cir.1990), cert. denied, 112 S.Ct. 230
(1991).
Mr. Olivas next challenges his consent to the search of the vehicle as
involuntary. This is a factual question, to be resolved based upon the totality of
the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
The government has the burden of proving free and voluntary consent. Id. at
222. Initially, we were concerned that the court interpreter had translated the
form signed by Mr. Olivas as "consent to register." Upon remand, however, the
district court found that the consent form was an accurate translation of the
English version into Spanish, and adequately advised Mr. Olivas of the
necessary information concerning consent to search. Mr. Olivas objected on
unspecified Sixth Amendment grounds to the court's reliance on an affidavit by
a foreign language professor (supplied by the government) as to the correct
interpretation of the form, we agree with the district court that the objection
was not well taken because it was entirely general and did not challenge the
validity of the contents of the affidavit.
The district court relied on several factors in finding that consent was voluntary.
The trooper testified that Mr. Olivas appeared to read the form, and signed it
when requested to do so. Mr. Olivas opened the trunk of the car when
requested, after obtaining the keys from the ignition. Neither Mr. Olivas nor his
codefendant objected to the search while it progressed. Finally, during trial, Mr.
Olivas indicated that the troopers had asked his permission to search the car. I
R.S. doc. 110, attach. 2. The district court's finding concerning the
voluntariness of consent is not clearly erroneous.
9
Mr. Olivas next contends that the district court erred in enhancing his sentence
under U.S.S.G. 3C1.1 for obstructing or impeding the administration of justice.
Normally, we review an obstruction of justice enhancement for clear error.
United States v. Fitzherbert, 13 F.3d 340, 344 (10th Cir.1993). The district
court overruled Mr. Olivas's objection and subsequently made a general
determination that the presentence report was accurate. III R. 13-14. The
presentence report began with the theory that the enhancement was warranted
under U.S.S.G. 3C1.1, comment (n.3b), which provides that the enhancement
should apply to "committing, suborning, or attempting to suborn perjury."
According to the report, Mr. Olivas's testimony that he received the car loaded
with marijuana the day before his arrest was designed to shield his codefendant
from culpability. The presentence report cites to misrepresentations and
inconsistencies in codefendant Alvarado's statements to the troopers. Even
farther afield, the presentence report relies upon Mr. Olivas's use of a false
social security number and address when obtaining a driver's license prior to
commission of the instant offense. Given that 3C1.1 requires a defendant to
have acted "during the investigation, prosecution, or sentencing of the instant
offense" we fail to see how these facts were relevant, let alone impeded the
investigation. See United States v. Robinson, 978 F.2d 1554, 1566 (10th
Cir.1992), cert. denied, 113 S.Ct. 1855 & 2938 (1993).
10
Subsequent to the sentencing, the Supreme Court held that specific findings
concerning each element of perjury are required when a defendant challenges a
perjury enhancement under 3C1.1. United States v. Dunnigan, 113 S.Ct. 1111,
1117-18 (1993). In the absence of any district court findings, we must remand.
See United States v. Markum, 4 F.3d 891, 897-98 (10th Cir.1993). This is not a
case in which the district court's apparent agreement with the presentence report
provides a clear understanding of the information it relied upon. See United
States v. Ballard, 16 F.3d 1110, 1113 (10th Cir.1994).
11
Mr. Olivas lastly challenges the district court's denial of a two-point downward
adjustment for acceptance of responsibility. U.S.S.G. 3E1.1. He argues that he
freely admitted the conduct underlying the count upon which he was convicted,
and that only the offense of conviction can be considered. While it is true that "
[a] defendant may remain silent in respect to relevant conduct beyond the
offense of conviction" and be found to have accepted responsibility, the
Guidelines also provide that "a defendant who falsely denies, or frivolously
contests, relevant conduct that the court determines to be true" normally will
not have accepted responsibility. U.S.S.G. 3E1.1, comment. (n.1a).

12
We remand the acceptance of responsibility determination to the district court,

however, because the presentence report relied upon U.S.S.G. 3E1.1, comment.
(n.4) indicating that absent an extraordinary case, conduct resulting in an
obstruction adjustment under U.S.S.G. 3C1.1 ordinarily indicates the lack of
acceptance of responsibility. See United States v. Fetherolf, 1994 WL 117197,
* 2 (10th Cir.1994); United States v. Amos, 984 F.2d 1067, 1073 (10th
Cir.1993). Because the district court will reconsider the 3C1.1 adjustment, we
deem it best for this matter to be reconsidered in light of that determination. We
express no opinion on the proper disposition.
13
AFFIRMED and REMANDED.
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 of the court's General
Order. 151 F.R.D. 470 (10th Cir.1993)
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause
therefore is ordered submitted without oral argument
The Honorable H. Dale Cook, Senior United States District Judge for the
Northern District of Oklahoma, sitting by designation

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25 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Tenth Circuit.

ORDER AND JUDGMENT12

not have accepted responsibility. U.S.S.G. 3E1.1, comment. (n.1a).

We remand the acceptance of responsibility determination to the district court,

AFFIRMED and REMANDED.

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