USA vs Jose Becerra-Becerra

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 15, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-12565
Non-Argument Calendar
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D.C. Docket No. 5:09-cr-00052-JA-GRJ-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE BECERRA-BECERRA,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 15, 2011)
Before EDMONDSON, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Jose Becerra-Becerra appeals his convictions for drug conspiracy and drug

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possession, 21 U.S.C. §§ 841(a)(1), 846. No reversible error has been shown; we
affirm.
On appeal, Becerra-Becerra argues that the district court erred in denying
his motion to suppress because no probable cause existed for the police officer to
believe a traffic violation had occurred. In considering the district court’s denial1
of a motion to suppress, we review fact determinations for clear error and the
application of law to the facts de novo. United States v. Boyce, 351 F.3d 1102,
1105 (11th Cir. 2003). And we construe all facts in the light most favorable to the
prevailing party. Id.
“A traffic stop is a seizure within the meaning of the Fourth Amendment.”
United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). A decision to stop
a vehicle is reasonable under the Fourth Amendment when an officer has probable
cause to believe that a traffic violation occurred. United States v. Simmons, 172
F.3d 775, 778 (11th Cir. 1999).
Here, the officer testified that he observed Becerra-Becerra driving on
Interstate 75 at a speed of 70 miles per hour. The officer next observed Becerra-
During the traffic stop, the officer’s partner arrived with a drug-sniffing dog. The dog1
alerted to the presence of drugs; and the officers later discovered cocaine hidden in the vehicle.
In the district court, Becerra-Becerra also argued that the officers unlawfully prolonged the
duration of the traffic stop; but on appeal, he offers no argument on this issue and, thus, has
abandoned it. See United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004).
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Becerra suddenly change from the center lane to the left lane and, when he did so,
Becerra-Becerra was following the car in front of him by only about one or two
car lengths. According to the officer, for every 10 miles per hour, there should be
one car length between vehicles, so at 70 miles per hour, seven car lengths should
have existed between Becerra-Becerra’s vehicle and the other vehicle.
Under Florida law,
[t]he driver of a motor vehicle shall not follow another vehicle
more closely than is reasonable and prudent, having due regard for
the speed of such vehicles and the traffic upon, and the condition of,
the highway.
Fla. Stat. § 316.0895(1); see also Velez v. State, 554 So.2d 545, 546-47 (Fla. Dist.
Ct. App. 1989) (upholding a traffic stop as valid when the police officer observed
defendant driving at 55 miles per hour two car lengths behind another vehicle, in
violation of section 316.0895(1)).
On this record, we cannot say it was unreasonable for the officer to stop
Becerra-Becerra because the officer’s observation of his driving at 70 miles per
hour, but following only one or two car lengths behind the vehicle in front of him,
gave the officer probable cause to think a violation of section 316.0895(1) had
occurred. See Purcell, 236 F.3d at 1276 n.5 (concluding that a distance of three
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car lengths reasonably could have been interpreted by an officer as violating
section 316.0895(1)). Becerra-Becerra’s appellate assertion that the highway
conditions were such that following another vehicle by one to two car lengths was
reasonable under the circumstances is unavailing. Because the officer had
probable cause to stop Becerra-Becerra for following another vehicle too closely,
the district court committed no error in denying the motion to suppress.2
Becerra-Becerra also challenges the district court’s jury instructions on his
section 841 offense. During jury deliberations, the jury posed a question to the
district court about whether the jury had to convict “only on the defendant’s
knowledge of a ‘specific drug’ or simply a ‘controlled substance.’” The court
responded that it was “not necessary that a defendant know the identity of a
controlled substance as long as defendant knew it was a controlled substance.”
Becerra-Becerra argues that drug type is an essential element of a section 841
offense, so the district court’s response was erroneous as a matter of law and a
violation of his constitutional rights. We review de novo “whether the district
court misstated the law when instructing the jury or misled the jury to the
Because we conclude that probable cause supported the officer’s decision to stop2
Becerra-Becerra for following too closely, we need not decide whether probable cause supported
the officer’s other reason for stopping Becerra-Becerra: his failure to use a signal when changing
lanes.
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prejudice of the defendant.” United States v. Deleveaux, 205 F.3d 1292, 1296
(11th Cir. 2000).
The district court gave the jury the correct instructions. Section 841(a)(1)
makes it illegal for anyone to distribute or possess with intent to distribute a
“controlled substance.” 21 U.S.C. § 841(a)(1). To sustain a conviction under
section 841(a)(1), the government must prove the defendant (1) knowingly, (2)
possessed a controlled substance, (3) with intent to distribute it. See United States
v. Baker, 432 F.3d 1189, 1233 (11th Cir. 2005). The government need not prove
that defendant had knowledge of the particular drug involved, but must prove only
that defendant knew he was dealing with some controlled substance. United
States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir. 1996) (citing United States v.
Gomez, 905 F.3d 1513, 1514 (11th Cir. 1990)). Thus, because our precedent says
that drug type is not an essential element of a section 841(a)(1) offense, the district
court committed no error in its instruction to the jury.3
AFFIRMED.
Becerra-Becerra’s contention that the district court’s answer to the jury’s question3
conflicted with the court’s earlier instruction on conspiracy is incorrect. The conspiracy
instruction explained that the jury could find that Becerra-Becerra was a member of the
conspiracy if they concluded that he had a “general understanding of the unlawful purpose of the
plan.” The instruction noted that the jury could consider Becerra-Becerra’s knowledge of “the
nature . . . of the substance involved” in making this conclusion; but the instruction did not
require the jury to take this knowledge into consideration.
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