United States of America v. Sophia Arianna Moreno

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SOPHIA ARIANNA MORENO,
Defendant-Appellant.
No. 21-10182
D.C. No.
4:19-cr-03393-JAS-LCK-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted April 18, 2023**
Phoenix, Arizona
Before: OWENS and BADE, Circuit Judges, and BAKER,*** International Trade
Judge.
Sophia Moreno appeals from the district court’s judgment following her
conditional guilty plea to conspiracy to transport, for profit, noncitizens who have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
APR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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entered or remain in the United States unlawfully, in violation of 8 U.S.C. § 1324.
Moreno contends that the district court, in adopting the magistrate judge’s report
and recommendation, erred in denying her motion to suppress evidence after
finding that a border patrol agent had reasonable suspicion to stop her vehicle. We
review reasonable suspicion determinations de novo and any underlying factual
findings for clear error. United States v. Bontemps, 977 F.3d 909, 913 (9th Cir.
2020). Because this de novo review is “slightly more circumscribed than usual,”
we “defer to the inferences drawn by the district court and the officers on the
scene, not just the district court’s factual findings.” United States v. Valdes-Vega,
738 F.3d 1074, 1077 (9th Cir. 2013) (en banc). We have jurisdiction under 28
U.S.C. § 1291 and affirm.
Border patrol officers may conduct “brief investigatory stops without
violating the Fourth Amendment if the officer’s action is supported by reasonable
suspicion to believe that criminal activity may be afoot.” Id. at 1078 (internal
quotation marks and citation omitted). To determine whether an officer had
reasonable suspicion, we look at the “totality of the circumstances.” Id. (citation
omitted). In a border context, such as here, the totality of the circumstances may
include factors such as the “characteristics of the area, proximity to the border,
usual patterns of traffic and time of day, previous alien or drug smuggling in the
area, behavior of the driver, appearance or behavior of passengers, and the model

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and appearance of the vehicle.” Id. at 1079.
Applying these standards, the border patrol agent had reasonable suspicion
to conduct the vehicle stop. The stop occurred about forty-five miles from the
border on a route commonly used by smugglers. See id. at 1078-80 (finding
reasonable suspicion, in part, because the stop was seventy miles north of the
United States–Mexico border along a route commonly used by smugglers). The
checkpoint located on the route was also closed due to rain, which, according to
the agent, usually results in an uptick in smuggling cases. Although the district
court relied on this factor without first determining whether a smuggling operation
would have had time to respond to the checkpoint’s closure, we “defer to the
inferences drawn by the district court and the officers on the scene.” Id. at 1077.
Further, the agent observed Moreno driving closely behind another agent’s vehicle
that was pursuing another car on an otherwise empty highway, which is contrary to
the behavior of “a typical driver [who] would give a law enforcement vehicle
space.” See United States v. Diaz-Juarez, 299 F.3d 1138, 1142 (9th Cir. 2002)
(finding reasonable suspicion based on a driver’s “unusual car and driving
behavior”). Finally, the agent received notice of a Treasury Enforcement
Communications System (“TECS”) alert attached to Moreno and her vehicle for
previous smuggling activity just two weeks prior. See United States v. Cotterman,
709 F.3d 952, 968 (9th Cir. 2013) (en banc) (finding reasonable suspicion based on

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a TECS alert).
The district court also did not clearly err in making these factual
determinations. The district court adopted the magistrate judge’s report and
recommendation, which had relied on the agent’s testimony after finding him
credible and “quite knowledgeable about alien smuggling investigations.”
Although Moreno contends that the district court clearly erred in relying on the
agent’s mistaken assumption about the fastest route to Green Valley, the mistake
was not unreasonable given that the discrepancy between the two routes was only
two minutes. See United States v. Dorais, 241 F.3d 1124, 1127, 1130-31 (9th Cir.
2001) (finding the police’s mistake that a rental car was overdue reasonable, even
though the car was not due for about another eight hours).
Even if we were to find the other factors that Moreno challenged in her brief
less probative than the district court did, the totality of the circumstances still
supports a finding of reasonable suspicion. See United States v. Arvizu, 534 U.S.
266, 274 (2002) (holding that the reasonable suspicion analysis precludes a
“divide-and-conquer” approach in which the court gives no weight to a factor that
is “by itself readily susceptible to an innocent explanation”). Thus, we affirm the
district court’s denial of the motion to suppress.
AFFIRMED.

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