United States of America v. Paul Edward Davis

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PAUL EDWARD DAVIS,
Defendant-Appellant.
No. 15-10256
D.C. No. 2:13-cr-00301-APG-
CWH-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted January 12, 2017
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and ERICKSON,** District
Judge.
Paul Edward Davis appeals from a district court judgment following his jury
conviction and sentence on one count of possession of a controlled substance with
intent to distribute 50 grams or more of methamphetamine in violation of 21
FILED
APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Ralph R. Erickson, United States District Judge for the
District of North Dakota, sitting by designation.

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U.S.C. § 841(a)(1) and (b)(1)(A)(viii), and one count of possession of marijuana
with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). We
have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.
Davis asks this court to reverse the district court’s denial of his motion to
suppress evidence obtained following a traffic stop of his vehicle on July 27, 2013.
He contends the stop was pretextual and not based on reasonable suspicion that he
was engaged in unlawful activity. In analyzing the totality of circumstances
surrounding the stop, the court heard testimony from two trained law enforcement
officers, who paced Davis’s vehicle and concluded that it was exceeding the posted
speed limit. Davis’s contention that the speeding stop was a mere pretext to allow
the officers to investigate possible drug trafficking is of no avail because the
subjective motivation of the officers will not invalidate an otherwise valid stop.
United States v. Ibarra, 345 F.3d 711, 713-14 (9th Cir. 2003) (citing Whren v.
United States, 517 U.S. 806, 813 (1996)).
Davis’s claim that the warrantless search of his automobile was not
supported by probable cause is without merit. The known facts and circumstances
leading up to the vehicle search included Trooper Brosnahan smelling marijuana
wafting from Davis’s vehicle as she approached his open window. The smell
“warrant[ed] a reasonable person to conclude that contraband or evidence of
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crime” would be found in the vehicle. Id.at 715-16 (citing Ornelas v. United
States, 517 U.S. 690, 694 (1996)). Giving “deference to the district court’s
credibility determinations”, see United States v. Craighead, 539 F.3d 1073, 1082
(9th Cir. 2008), the court finds no error in the district court’s denial of Davis’s
motion to suppress.
Davis also contends that the district court abused its discretion in denying
his motion for mistrial after a prosecution witness testified to “numerous priors” in
the face of the district court’s previous ruling that only one prior would be allowed
into evidence under Federal Rule of Evidence 404(b) to show lack of mistake or
accident. The court gave a strong curative instruction and the witness subsequently
clarified he was referencing only one prior conviction. Under these circumstances,
denial of the motion for mistrial was not an abuse of discretion. United States v.
Ramirez, 176 F.3d 1179, 1183 (9th Cir. 1999); United States v. Johnson, 618 F.2d
60, 62 (9th Cir. 1980).
Davis’s argument that the district court abused its discretion in admitting
evidence of his prior drug conviction also fails. The court applied the appropriate
analysis in deciding that the prior conviction was sufficiently similar and not too
remote in time, considering that Davis was incarcerated for most of the intervening
time between arrest and his prior conviction. United States v. Vo, 413 F.3d 1010,
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1017-19 (9th Cir. 2005). Analyzing the evidence under Federal Rule of Evidence
403, the court concluded that any prejudicial effect of the evidence did not
substantially outweigh its probative value. The court gave an appropriate limiting
instruction to the jury. This constituted a proper exercise of the court’s discretion.
Id. at 1019 (citing United States v. Chea, 231 F.3d 531, 535 (9th Cir. 2000)).
Davis next asserts that, based on United States v. Lui, 941 F.2d 844 (9th Cir.
1991), the district court committed plain error1 when it allowed the prosecution to
offer drug courier profile evidence as substantive evidence of his guilt. Davis
misapprehends the purpose for which the courier profile evidence was admitted.
The evidence was not admitted to prove his guilt, but was used for the limited
purposes of impeachment background explanation for Davis’s stop and arrest. See
Lui, 941 F.2d at 847 (recognizing “certain limited circumstances” when such
evidence is admissible). Davis interjected pretext and an impermissible basis for
the stop into the trial in spite of a previous ruling on his suppression motion
rejecting that position. By continuing to press the issue at trial, Davis interjected
the basis for the stop into the trial and the admission of the evidence was
appropriate to impeach and rebut Davis’s claim that the stop was improper and
mere pretext.
1 Davis failed to object to the admission of the evidence at trial.
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Finally, Davis’s sentence, on the high end of the United States Sentencing
Guidelines, is not substantially unreasonable. The court properly considered the
factors required by 18 U.S.C. § 3553(a). This court will not substitute its
reasoning for that of the district court in interpreting the 3553(a) factors. Gall v.
United States, 552 U.S. 38, 59-60 (2007). The sentence was not the result of an
abuse of discretion.
AFFIRMED.
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