United States v. Al Nasser ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-10466
v. D.C. No.
KARIM HUSSEIN AL NASSER, aka  CR-03-01122-NVW
Karim Hussein Al-Nasser, Karim ORDER AND
H. AlNasser, Kram Nseelt, Karim AMENDED
H. Alaassar, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
April 3, 2006—San Francisco, California
Opinion Filed March 20, 2007
Amended Opinion Filed February 4, 2009
Before: Stephen S. Trott, Andrew J. Kleinfeld, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Kleinfeld
1177
1180 UNITED STATES v. AL NASSER
COUNSEL
James Sun Park, Park Law Office, PLC, Phoenix, Arizona, for
defendant-appellant Karim Hussein Al Nasser.
Gary M. Restaino, Assistant U. S. Attorney, Phoenix, Ari-
zona, for the plaintiff-appellee.
ORDER
The opinion filed on March 20, 2007, and appearing at 479
F.3d 1166 is amended and the dissent is withdrawn. The
superseding opinion will be filed concurrently with this order.
The parties may file an additional petition for rehearing or
rehearing en banc. All other pending motions are denied as
moot.
UNITED STATES v. AL NASSER 1181
OPINION
KLEINFELD, Circuit Judge:
In this amended opinion,1 we address the applicability of
the Fourth Amendment when the police intend not to stop
someone, but that person nevertheless stops. We affirm.
FACTS
A Border Patrol agent was patrolling a stretch of highway
running north from the Mexican border in Arizona through
the Tohono O’odham Nation Indian reservation. He stopped
a pickup truck (not the car driven by the defendant, Al Nas-
ser) around nine at night which he suspected was carrying
illegal aliens. It turned out that there were no illegal aliens in
the truck, but there was alcohol, which was illegal on that part
of the reservation. The Border Patrol agent called the Tohono
O’odham Nation Police Department, which sent a tribal
police officer to take charge of the alcohol violators. The
other Border Patrol agent working on that stretch of highway
came too.
Meanwhile, a sedan (also not driven by Al Nasser) drove
toward the spot where the pickup truck, tribal police vehicle,
and two Border Patrol vehicles were stopped. The Border
Patrol agent shined his flashlight at the sedan so he would be
seen, despite the darkness and his dark clothing. When he did,
he saw people hiding in the back seat (he is six feet nine
inches tall, and had a good view down toward the floor of the
1
Judge Ferguson dissented in our earlier decision in this case, United
States v. Al Nasser, 479 F.3d 1166 (2007). After Judge Ferguson’s death,
Judge N.R. Smith was drawn to replace him. Serious questions raised by
the petition for rehearing, Judge Ferguson’s dissent, and our colleagues
within the court persuaded us to withdraw our earlier opinion and replace
it with this amended opinion. Only the part of the opinion addressing the
stop is changed. The disposition of Al Nasser’s sentencing appeal is
unchanged in substance.
1182 UNITED STATES v. AL NASSER
car as it passed). This second vehicle appeared to be an alien
smuggling car, so the Border Patrol agent gestured the driver
to stop and pull over. The sedan responded by pulling off the
road in front of the pickup truck. The agent then took the driv-
er’s keys, and determined that this second vehicle was indeed
carrying illegal aliens.
Now there were five vehicles stopped on the road, three
law enforcement vehicles with light bars flashing on two of
them, plus the pickup truck carrying alcohol and the sedan
carrying illegal aliens. The vehicles were pulled over on the
side of the road, partially blocking the northbound lane of the
two-lane highway. The southbound lane remained clear. Al
Nasser drove up. The tall Border Patrol agent again shined his
flashlight so he would be seen and not hit. He thought Al Nas-
ser’s car probably had illegal aliens in it, which he mentioned
to the other Border Patrol agent. But he decided not to stop
it, because the Border Patrol agents already had their hands
full. They were still processing the illegal aliens in the sedan,
and the tribal officer was still processing the people carrying
the alcohol in the pickup truck. Though they thought Al Nas-
ser was carrying illegal aliens, the agents were just too busy
for another carful of illegal aliens and were going to let Al
Nasser go to avoid the safety problem of having to control too
many people.
But Al Nasser stopped anyway, in the middle of the road.
Though he testified at the suppression hearing, neither side
asked him why he stopped and he never said. Coming upon
the five stopped vehicles, he may have thought that he was
supposed to stop, or thought that he ought to stop to avoid
danger on the road. But we do not know whether Al Nasser
thought the police were stopping him. He might have believed
that the Border Patrol agents wanted him to stop, since he
could see three law enforcement cars with flashing lights and
UNITED STATES v. AL NASSER 1183
two stopped vehicles. Or he might not have, since the south-
bound lane was clear. No one told him or signaled him to stop.2
The Border Patrol agent assumed Al Nasser was Mexican
and spoke to him in Spanish after Al Nasser stopped. Al Nas-
ser was Iraqi and could not understand Spanish. Now the Bor-
der Patrol agents had Al Nasser and his passengers even
though they did not want him. The people hiding on the floor
of Al Nasser’s car had paid coyotes in Mexico $1,000 and
$1,200 respectively to be smuggled into the United States.
After Al Nasser stopped of his own accord and the tall Border
Patrol agent had observed the smuggled aliens in his car, one
of the Border Patrol agents came over and took his keys, and
the illegal aliens in the car were apprehended. Al Nasser was
subsequently convicted of knowingly transporting illegal
aliens.3
ANALYSIS
On appeal Al Nasser raises two issues: (1) the statements
made by the illegal aliens should have been suppressed as
fruits of an unreasonable seizure, because he was stopped in
the absence of reasonable suspicion;4 and (2) his sentence was
based on an incorrect Guidelines calculation.
I. The Stop.
What if the police do not intend to stop someone, but a per-
son thinks that he is being stopped? Must that unintended stop
still be supported by reasonable suspicion in order to prevent
suppression of its fruits? Does the “objective” examination of
2
There is some dispute about this, addressed below.
3
8 U.S.C. § 1324(a)(1)(A)(ii), (a)(1)(B)(I).
4
Al Nasser does not argue, and did not argue in district court, that he
was unreasonably seized when the Border Patrol agent later approached
his stopped car and took his keys, no doubt because by then the Border
Patrol agent had clearly observed the aliens hiding in back.
1184 UNITED STATES v. AL NASSER
police conduct, as required in Whren v. United States5 for a
vehicle stop brought about by police action undertaken to
effect the stop, mean that if a reasonable person would think
that he was being stopped, then the person is “seized” within
the meaning of the Fourth Amendment, even if the police do
not want the person to stop and intended for him to go on
about his business without stopping?
There is language in some decisions6 that might arguably
lend itself to such an interpretation, but we reject it. The
Fourth Amendment7 protects people from unreasonable “sei-
zures,” and the Supreme Court “has . . . consistently construed
this protection as proscribing only governmental action.”8 Al
Nasser contends that he was unreasonably seized when one of
the Border Patrol agents shone a flashlight towards and into
Al Nasser’s car as he drove by the scene described above
because a reasonable person would think that he was being
stopped.9 This argument skips a step. Before asking whether
a reasonable person would have thought he was being
stopped, a court must ask whether the police in fact stopped
him. Usually the objective circumstances would prove a stop,
but not always. The government does not violate a person’s
right not to be stopped when its agents do not effect the stop
or the person voluntarily stops. We thus do not reach the
objective inquiry of whether a reasonable person in Al Nas-
ser’s position would have believed he was free to go.
5
517 U.S. 806 (1996).
6
See, e.g., United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.
1997).
7
U.S. Const. amend. IV (“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon prob-
able cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”)
8
United States v. Jacobsen, 466 U.S. 109, 113 (1984).
9
See supra 1182-83.
UNITED STATES v. AL NASSER 1185
The question of whether to apply the objective test, whether
a reasonable person would have thought he was being
stopped, or also to require police intent as a sine qua non, is
but another example of the inescapable philosophical problem
of causation in the law.10 Fairly consistently, the law requires
some sort of blameworthiness11 in addition to “cause in fact,”
i.e., mere consequence in a factual causal chain.12 A police
officer may properly be blamed for violating a person’s
Fourth Amendment rights if he stops the person without rea-
sonable suspicion. But it does not make sense to blame an
officer for interfering with someone’s liberty when a person
stops of his own accord, particularly when the officer did
nothing to effect the stop and did not intend to stop him.13
This distinction is practical, not just philosophical. The alter-
native would be to require the police affirmatively to commu-
nicate to people that they were not being stopped every time
a person might think the contrary, on pain of otherwise being
charged with violating constitutional rights. This is a danger-
ous requirement if the police already have their hands full
with suspects they have stopped.
[1] The Supreme Court held in Herring v. United States
that “evidence should be suppressed only if it can be said that
the law enforcement officer had knowledge, or may properly
be charged with knowledge, that the search was unconstitu-
tional under the Fourth Amendment.”14 Thus, “[t]o trigger the
exclusionary rule, police conduct must be sufficiently deliber-
ate that exclusion can meaningfully deter it, and sufficiently
10
H.L.A. Hart & Tony Honore, Causation in the Law (2d ed. 1985).
11
Id. at 62-68; see also Herring v. United States, No. 07-513, slip op.
at 7-8 (U.S. Jan. 14, 2009) (“The extent to which the exclusionary rule is
justified by these deterrence principles varies with the culpability of the
law enforcement conduct.”).
12
Hart & Honore, supra note 10, at 68-82.
13
See Herring, slip op. at 12-13 (explaining that “the exclusionary rule
serves to deter deliberate, reckless, or grossly negligent conduct”).
14
Herring, slip op. at 8.
1186 UNITED STATES v. AL NASSER
culpable that such deterrence is worth the price paid by the
justice system.”15 There is nothing to deter when the police do
not mean to stop someone.16 The fact that the person mis-
takenly thinks that he is being stopped does not require sup-
pression of the fruits of the person’s voluntary stop.
A. The District Court’s Findings of Fact Are Not Clearly
Erroneous.
The district court did not decide whether the alleged seizure
in this case was reasonable. Rather, after an evidentiary hear-
ing, it concluded that there was no seizure at all. We are
bound by the district court’s findings of fact unless they are
clearly erroneous,17 and we review de novo whether on those
facts there was what amounted legally to a seizure.18
At the evidentiary hearing, the two Border Patrol agents
testified that they did nothing to stop Al Nasser’s car. Indeed,
they did not want to have anything to do with Al Nasser:
A. As he was passing by, I was thinking, “There
goes another load of illegal aliens.”
Q. So why not stop him?
A. We already had two vehicles stopped there, one
with illegal aliens, one with alcohol, and I felt that
was more than we could safely control at the time.
The tribal police officer, who was facing the other way,
thought that he heard one of the Border Patrol agents holler
15
Id. at 9.
16
Id. at 8.
17
See United States v. Crawford, 323 F.3d 700, 705 (9th Cir. 2003);
United States v. Kerr, 817 F.2d 1384, 1386 (9th Cir. 1987).
18
See United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000);
United States v. Kim, 25 F.3d 1426, 1430 (9th Cir. 1994).
UNITED STATES v. AL NASSER 1187
stop toward Al Nasser’s vehicle. That testimony established
an issue of fact as to whether the Border Patrol agents did or
did not tell Al Nasser to stop. The district court resolved this
dispute in favor of the Border Patrol agents’ version of the
facts. The district court found that the agents did not want Al
Nasser to stop, did not intend for Al Nasser to stop, and did
not tell or otherwise signal Al Nasser to stop.
[2] Al Nasser contends that the district court’s finding is
clearly erroneous because it is contrary to the tribal officer’s
testimony. His argument is unpersuasive. The district court
had to choose between the Border Patrol agents’ testimony
and the tribal officer’s testimony, neither of which were
implausible. When Al Nasser testified, he did not say why he
stopped or that anyone signaled him to stop. The conspicuous
absence of Al Nasser’s testimony on this subject supports the
district court’s resolution of the conflicting evidence. The dis-
trict court’s choice of one of the two plausible accounts was
not clearly erroneous.19
B. A Voluntary Stop Is Not a Seizure.
Determining whether to apply a subjective or objective test
to police conduct is a practical exercise, not a metaphysical
one. The purpose of either test is “to avoid the kind of ‘arbi-
trary and oppressive interference by [law] enforcement offi-
cials with the privacy and personal security of individuals’
that the Fourth Amendment was intended to limit.”20
[3] In United States v. Mendenhall,21 the Supreme Court
articulated an objective test of what constitutes a “seizure” for
19
See United States v. Elliot, 322 F.3d 710, 715 (9th Cir. 2003) (“Where
there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” (quotes omitted)).
20
Breindlin v. California, 127 S. Ct. 2400, 2410 (2007); see also United
States v. Ortiz, 422 U.S. 891, 895 (1974).
21
446 U.S. 544 (1979).
1188 UNITED STATES v. AL NASSER
the purposes of the Fourth Amendment. It did so in the pro-
cess of finding that no seizure had occurred. In Mendenhall,
DEA agents spotted a woman getting off a plane whom they
thought was a drug courier, so they approached her and asked
to see her identification and plane ticket.22 The Court con-
cluded that the DEA agents were free to ask, and the woman
was free to refuse and walk away. In holding that the officer’s
approach of the woman and request to see her ticket and iden-
tification was not a stop, the Court explained that “a person
has been ‘seized’ within the meaning of the Fourth Amend-
ment only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he was
not free to leave.”23 Likewise, the Court applied the objective
“reasonable person” test in Michigan v. Chesternut,24 which
held that driving a police cruiser alongside an apparent drug
dealer as he ran away was not a seizure.25
[4] Subsequently, the Supreme Court has made clear that its
decisions holding that an encounter is not a seizure when a
reasonable person would feel free to leave do not mean that
an encounter is a seizure just because a reasonable person
would not feel free to leave. In fact, the Court has expressly
rejected such an inference. Concluding that a roadblock
placed across both lanes of a two-lane highway was a seizure,
the Court held in Brower v. County of Inyo26 that police inten-
tion made the difference. “Violation of the Fourth Amend-
ment requires an intentional acquisition of physical control.”27
“It is clear, in other words, that a Fourth Amendment seizure
does not occur whenever there is a governmentally caused ter-
mination of an individual’s freedom of movement (the inno-
22
Id. at 547-48.
23
Id. at 554.
24
486 U.S. 567 (1987).
25
Id. at 569, 574-75.
26
489 U.S. 593 (1988).
27
Id. at 596 (emphasis added).
UNITED STATES v. AL NASSER 1189
cent passerby), nor even whenever there is a governmentally
caused and governmentally desired termination of an individ-
ual’s freedom of movement (the fleeing felon), but only when
there is a governmental termination of freedom of movement
through means intentionally applied.”28 The Court thus sup-
plemented the objective inquiry of whether a “reasonable per-
son would have believed that he was not free to leave,”29 with
a requirement that the detention be “willful.”30 This latter
requirement arises because “the Fourth Amendment addresses
‘misuse of power,’ . . . not the accidental effects of otherwise
lawful government conduct.”31
That intentionality was the focus of the Court’s inquiry is
clear from the separate opinion concurring in judgment in
Brower. The separate opinion conceded that intentional acqui-
sition of physical control characterized the typical seizure, but
questioned whether it was an essential element in every sei-
zure.32 The majority opinion rejected the separate opinion’s
suggestion that the “reasonable person would have believed
that he was not free to leave”33 test alone sufficed.34
The Brower intentionality requirement for a seizure was
reaffirmed in Scott v. Harris.35 In Scott, the Court held that “a
Fourth Amendment seizure [occurs] when there is a govern-
mental termination of freedom of movement through means
intentionally applied.”36 In California v. Hodari D.,37 the
28
Id. at 596-97 (emphasis in original).
29
Mendenhall, 446 U.S. at 554.
30
Brower, 489 U.S. at 596.
31
Id. (citation omitted).
32
Id. at 600 (Stevens, J., concurring in judgment).
33
Mendenhall, 446 U.S. at 554.
34
Brower, 489 U.S. at 596-97, 600.
35
127 S. Ct. 1769 (2007).
36
Id. at 1776 (citing Brower, 489 U.S. at 596-97) (emphasis added).
37
499 U.S. 621 (1991).
1190 UNITED STATES v. AL NASSER
Court clarified that this “reasonable person” test means “that
a person has been seized ‘only if [the test is met,]’ not that he
has been seized ‘whenever’ [the test is met]; it states a
necessary, but not a sufficient, condition for seizure.”38
In Brendlin v. California the Court analyzed whether an
unintended target, the passenger in a vehicle, was seized dur-
ing a traffic stop and reaffirmed the requirement that “the
detention [be] ‘willful’ and not merely the consequence of an
unknowing act.”39 The Court did apply the objective test,
whether “a reasonable person would have believed that he
was not free to leave,”40 but only after asking and finding that
the means of stopping the car in which the passenger was rid-
ing were intentionally applied to accomplish the seizure.41 Not
only must the car or individual’s freedom of movement end,
but that termination must occur through “means intentionally
applied.”42 The Court clarified that the “intent that counts
under the Fourth Amendment is the intent that has been con-
veyed to the person confronted, and the criterion of willful
restriction on freedom of movement is no invitation to look to
subjective intent when determining who is seized.”43 Thus,
there was no seizure when a police officer accidentally ran
over a passenger who fell off a motorcycle that the officer
was chasing, because running over the passenger was not a
“means intentionally applied” to stop the motorcycle.44 The
objective circumstances in Bower and Brendlin left no doubt
that the official conduct was directed at curtailing a particular
car’s freedom of movement, just as the circumstances in
38
Hodari D., 499 U.S. at 628.
39
See Brendlin v. California, 127 S. Ct. 2400, 2405 (2007)
40
United States v. Mendenhall, 446 U.S. 544, 554 (1979).
41
Brendlin, 127 S. Ct. at 2409.
42
Id.; see also County of Sacramento v. Lewis, 523 U.S. 833, 843
(1998).
43
Brendlin, 127 S. Ct. at 2409 (internal quotation marks, alteration and
citation omitted).
44
Lewis, 523 U.S. at 843.
UNITED STATES v. AL NASSER 1191
Lewis left no doubt that the officer did not engage in the high-
speed pursuit to ram the motorcycle’s passenger if he unex-
pectedly fell off the motorcycle.
[5] Further, Breindlin states that motorists much like Al
Nasser, who are compelled to slow down or even stop
because of traffic congestion caused by a police stop of a pre-
ceding car are not themselves “seized,” even though their stop
is compelled by police conduct.45 In analyzing this hypotheti-
cal, the Court distinguished the effect on these motorists —
an “incidental restriction” — from an intentional application
of government authority that might implicate the Fourth
Amendment. Specifically, the Court observed that “an occu-
pant of a car who knows that he is stuck in traffic because
another car has been pulled over (like the motorist who can’t
even make out why the road is suddenly clogged) would not
perceive a show of authority as directed at him or his car.”46
The circumstances in such situations clearly convey that the
officer had no intent to stop the vehicles passing near or
around the targeted vehicles. “Nor would the consequential
blockage [from the traffic stop of another car] call for a pre-
cautionary rule to avoid the kind of ‘arbitrary and oppressive
interference by [law] enforcement officials with the privacy
and personal security of individuals’ that the Fourth Amend-
ment was intended to limit.”47
Our cases are consistent with this analysis. In United States
v. Judge,48 we held that no seizure occurs when a driver
“stop[s] his car voluntarily and [the police] in no way ordered
or requested him to do so.”49 In United States v. Chan-Geminis,50
45
Brendlin, 127 S. Ct. at 2409-10.
46
Id. at 2410 (emphasis added).
47
Id. at 2409.
48
501 F.2d 1348 (9th Cir. 1974).
49
Id. at 1349.
50
125 F.3d 1324 (9th Cir. 1997).
1192 UNITED STATES v. AL NASSER
a tribal police officer followed a pickup truck, then pulled
over and activated his emergency lights after the truck
stopped and the driver raised the hood, ostensibly indicating
a mechanical problem. The officer did not return the driver’s
license and registration after confirming that they were “in
order,” but instead asked to search the truck. We held that a
seizure occurred when the officer did not return the license
and registration after finding that they were in order.51 We did
not characterize officer’s following the truck until it stopped
as a seizure. Similarly, in United States v. Summers,52 we held
that no constitutionally protected rights are implicated when
an encounter between a police officer and person is voluntary,
and the driver of the vehicle is stopped of his own volition.53
The language in Brower, Scott, and Brendlin fits this case.
Al Nasser’s stop was governmentally “caused” in a “but for”
sense: he would not have stopped if the Border Patrol agents
and tribal officers had not been present, with lights flashing
on three stopped government vehicles next to two stopped
civilian vehicles. But, Al Nasser’s stop was not a “seizure,”
because the government actors (who wanted him to go away,
not stop) clearly did not pull over the two other vehicles,
engage the emergency lights of two police vehicles, and shine
a flashlight at Al Nasser’s vehicle as he approached and
passed the scene in order to make Al Nasser stop. Although
they intended to stop the two other vehicles, they did not
intend to curtail Al Nasser’s freedom of movement (except
perhaps to the extent he needed to go around the stopped
vehicles). The sine qua non for a Fourth Amendment seizure
was missing because the means that led him to stop — the
lights, stopped vehicles and officer directing traffic — were
not “means intentionally applied”54 to bring about the stop of
51
Id. at 1236.
52
268 F.3d 683 (9th Cir. 2001).
53
Id. at 686-87.
54
Brendlin v. California, 127 S. Ct. 2400, 2409 (2007).
UNITED STATES v. AL NASSER 1193
Al Nasser’s car. Those actions, without more, did not demon-
strate an intent to stop every vehicle that drove past.
This case is therefore distinct from Brendlin, in which the
officer’s show of authority was unambiguously directed at the
vehicle in which Brendlin was a passenger and caused it to
pull over, thereby limiting Brendlin’s freedom of movement.
Rather, this case is similar to the hypothetical “incidental
restrictions” the Court discussed in Brendlin.55 The intent of
the officers directing traffic around an accident or pulling
over a particular vehicle is clear and unmistakable from the
circumstances. In the former context, the officer intends to
stop no one; in the latter context, the officer intends to seize
only the car stopped, not the cars “following the vehicle sub-
ject to the traffic stop.”56
Analogously, suppose a police car approaches a driver’s car
from behind, with siren blaring and lights flashing. The
driver, in accord with his reasonable belief that he is being
stopped, pulls onto the shoulder and stops. But the policeman
is chasing somebody else, who was ahead of the driver who
pulled over and the police car continues down the road. It can-
not reasonably be argued that the driver who pulled over was
“stopped” within the meaning of the Fourth Amendment, and
that accordingly reasonable suspicion was required for the
stop. The policeman has not violated the driver’s constitu-
tional rights even though a reasonable driver would think he
was being stopped. That is because the policeman did not
intend to stop him, even though a reasonable driver in his
position would think that he was being stopped.
This case is also distinct from consensual encounters
between a citizen and a police officer that evolve into seizures.57
For example, a police officer who begins questioning some-
55
Id. at 2409-10.
56
Id. at 2409.
57
See INS v. Delgado, 466 U.S. 210, 215 (1984).
1194 UNITED STATES v. AL NASSER
one without reasonable suspicion unambiguously has focused
the officer’s attention on that person. The means intentionally
applied are the officer’s questioning of the suspect and related
conduct, which are unmistakably directed at the suspect in the
context of a conversation with the suspect.
[6] A person is seized when he is “meant to be stopped by
[a particular law enforcement action] . . . and [is] so stopped.”58
That is, a seizure occurs where a person is stopped by “the
very instrumentality set in motion or put in place in order to
achieve that result.”59 Here, the two Border Patrol agents and
the tribal police officer did not stop their vehicles or the two
civilian ones in order to make other vehicles stop. Although
Al Nasser did stop, the lights and the vehicles that caused him
to do so were not a roadblock put in place to accomplish that
purpose. Thus, Al Nasser was thus not “seized” within the
meaning of the Fourth Amendment when he stopped his car.
[7] Though Al Nasser might have thought that the five
stopped vehicles and the Border Patrol agent in the road shin-
ing his flashlight were meant as a roadblock to stop all vehi-
cles, they were not. In light of the district court’s factual
finding that the officers did not shout at Al Nasser to stop, the
added detail of an officer standing in the road and shining a
flashlight on passing vehicles does not suggest that the offi-
cers intended to stop Al Nasser’s vehicle. Since there was no
intentional government action directed at Al Nasser to bring
about the stop of his vehicle, there could be no Fourth
Amendment “seizure.”60 Looking at the converse, could a
police officer be held liable for damages in a § 1983 suit if
someone believed that he was being stopped, even though the
officer intended not to stop him? Al Nasser’s decision to stop
58
Brendlin, 127 S. Ct. at 2409. (citing Brower v. County of Inyo, 489
U.S. 593, 599 (1988) (emphasis added)).
59
Brower, 489 U.S. at 599 (emphasis added).
60
Brendlin, 127 S. Ct. at 2409-10.
UNITED STATES v. AL NASSER 1195
was what the Court in Brower called an “accidental effect[ ]
of otherwise lawful government conduct.”61
II. Sentencing.
Al Nasser’s sentencing challenge was only to the Guide-
lines calculation, and we do not substantively amend our pre-
vious opinion in this respect. We review the district court’s
interpretation of the Sentencing Guidelines de novo and its
factual findings for clear error.62 We review the ultimate sen-
tence for “reasonableness.”63
Al Nasser sought a three-level downward adjustment in the
Guideline calculation because the jury had answered “No” to
the interrogatory asking whether he transported the illegal
aliens in his car “for the purpose of commercial advantage or
private financial gain.” The district court denied him the
adjustment, despite the absence of evidence that he received
any money, because the evidence showed that the aliens had
paid $1,000 and $1,200 respectively to a coyote for the trans-
portation. The court found that “this was not an unwise, gen-
erous picking up of hitchhikers[,]” that Al Nasser “knew it
was an organized activity involving commercial — commer-
cial is the wrong word — financial gain[,]” and that Al Nas-
ser’s account of how he happened to be there with the illegal
aliens was “not worthy of belief.”
[8] The Guidelines provide for a three-level downward
adjustment if the “offense was committed other than for
profit, or the offense involved the smuggling, transporting, or
harboring only of the defendant’s spouse or child.”64 The cor-
61
Brower, 489 U.S. at 596.
62
United States v. Kimbrew, 406 F.3d 1149, 1151-52 (9th Cir. 2005).
63
United States v. Booker, 543 U.S. 220, 261-62 (2005); United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
64
U.S. Sentencing Guideline Manual § 2L1.1(b)(1) (2003)(“If (A) the
offense was committed other than for profit, or the offense involved the
smuggling, transporting, or harboring only of the defendant’s spouse or
child (or both the defendant’s spouse and child), and (B) the base offense
level is determined under subsection (a)(2), decrease by 3 levels.”)
1196 UNITED STATES v. AL NASSER
responding Application Note says that the “other than for
profit” phrase means “that there was no payment or expecta-
tion of payment for the smuggling, transporting or harboring
of any of the unlawful aliens.”65 The Guidelines formerly pro-
vided for the adjustment where “the defendant committed the
offense other than for profit,” but the provision was amended
in 1997 to say “the offense was committed other than for
profit” in order “to narrow somewhat the class of cases that
would qualify for the reduced offense level.”66
65
Application Note 1 of § 2L1.1(b)(1) provides, in pertinent part: “For
purposes of this guideline — ‘The offense was committed other than for
profit’ means that there was no payment or expectation of payment for the
smuggling, transporting, or harboring of any of the unlawful aliens.” Id.
§ 2L1.1, cmt., n.1.
66
Id. at App. C, amend. 561. Amendment 561 provides:
Section 2L1.1 is repromulgated with the following changes:
Section 2L1.1(b)(1)(A) is amended by deleting “the defendant
committed the offense” and inserting in lieu thereof “the offense
was committed”.
The Commentary to §2L1.1 captioned “Application Notes” is
amended in Note 1 by deleting:
“ ‘The defendant committed the offense other than for profit’
means that there was no payment or expectation of payment
for the smuggling, transporting, or harboring of any of the
unlawful aliens. The ‘number of unlawful aliens smuggled,
transported, or harbored’ does not include the defendant.”,
and inserting in lieu thereof:
“ ‘The offense was committed other than for profit’ means
that there was no payment or expectation of payment for the
smuggling, transporting, or harboring of any of the unlawful
aliens.
‘Number of unlawful aliens smuggled, transported, or har-
bored’ does not include the defendant.”
Section 5K2.0 is amended in the third paragraph by deleting “im-
migration violations” and inserting in lieu thereof “other guide-
lines”; and by deleting “for an immigration violation” and
inserting in lieu thereof “under one of these other guidelines”.
UNITED STATES v. AL NASSER 1197
[9] Al Nasser committed the offense on October 5, 2003,
long after the narrower Guideline provision went into effect.
Under the 2003 Guidelines applicable at his sentencing, it did
not matter whether Al Nasser got paid, or even expected pay-
ment, because the district court did not find that the crime was
committed other than for profit. Al Nasser was part of a
scheme to transport the aliens for money, whether he person-
ally received any of the money or not. An “offense was com-
mitted other than for profit” only if the offense itself was
committed other than for profit, regardless of whether the par-
ticular defendant got, or expected to get, any of the money.
[10] The district court took account of United States v.
Booker,67 and although we had not yet issued our en banc
decision in United States v. Ameline,68 the district court antici-
pated it. The district court properly considered the reasonable-
ness of Al Nasser’s within-Guidelines sentence in light of all
the factors in 18 U.S.C. § 3553(a), and expressly acknowl-
edged that the Guidelines were advisory. Al Nasser argues
that his 15-month sentence was unreasonable because he
would be law-abiding in the future and the district court did
not consider the immigration consequences. However, the dis-
trict court expressly considered the immigration conse-
This amendment implements section 203 of the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996, Pub. L.
104-208, 110 Stat. 3009, which directs the Commission to amend
the guidelines for offenses related to smuggling, transporting, or
harboring illegal aliens. Pursuant to the emergency amendment
authority of that Act, this amendment previously was promul-
gated as a temporary measure effective May 1, 1997. This ver-
sion of the amendment changes § 2L1.1(b)(1)(A) (pertaining to
a reduction for non-profit offenses) to narrow somewhat the class
of cases that would qualify for the reduced offense level under
that provision. This amendment also makes a conforming
change to §5K2.0.
67
543 U.S. 220 (2005).
68
409 F.3d 1073 (9th Cir. 2005) (en banc).
1198 UNITED STATES v. AL NASSER
quences, and then decided not to reduce the sentence further,
despite whatever those consequences might be. This decision
was not an abuse of discretion.69 There is no basis for charac-
terizing the district court’s exercise of sentencing discretion,
or the sentence itself, as unreasonably harsh.
AFFIRMED.
69
United States v. Carty, 520 F.3d 984, 994-95 (9th Cir. 2008) (en
banc).