United States v. Efren Hernandez ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50291
Plaintiff-Appellee, D.C. No.
2:17-cr-00403-SVW-1
v.
EFREN JOSHUA HERNANDEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted August 16, 2019
Pasadena, California
Before: SCHROEDER and R. NELSON, Circuit Judges, and LEFKOW,** District
Judge.
Appellant Efren Hernandez entered a conditional guilty plea to being a felon
in possession of a firearm and ammunition, reserving his right to appeal the district
court’s denial of his motion to suppress. On appeal, Hernandez raises a number of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
challenges to Officer Hector Mendoza’s reasonable, articulable suspicion to stop
and frisk him, but the parties agree the oral pronouncement of Hernandez’s
sentence controls. We affirm in part and remand with instructions to amend the
written judgment to conform with the oral pronouncement.
1. We review de novo the denial of a motion to suppress evidence but
review for clear error the district court’s underlying findings of fact. United States
v. Crapser, 472 F.3d 1141, 1145 (9th Cir. 2007). We find no clear error of fact.
Whether a stop-and-frisk is lawful is a fact-driven inquiry, assessed under the
totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 273 (2002);
United States v. Williams, 846 F.3d 303, 308 (9th Cir. 2016). The reasonable
suspicion inquiry is “a commonsense, nontechnical conception that deals with the
factual and practical considerations of everyday life on which reasonable and
prudent men, not legal technicians, act.” United States v. Valdes-Vega, 738 F.3d
1074, 1078 (9th Cir. 2013) (internal quotation marks and brackets omitted).
Officer Mendoza was aware of the following facts before he stopped and
frisked Hernandez: (1) he was part of a team of officers responding to a 911 call
regarding an armed individual threatening people in room 443; (2) knocks on the
door of room 443 went unanswered; (3) officers had not yet identified the subject of
the 911 call; (4) frisks of others nearby left unresolved whether a gun was still
present in the area; (5) the Olympic Hotel was a known stronghold of the Crazy
2
Riders gang; (6) Hernandez was a Crazy Riders gang member who was on probation;
and (7) Hernandez climbed the stairs to the fourth floor, made eye contact with
Officer Mendoza, and immediately turned around. Although Hernandez isolates
each fact in an attempt to undercut Officer Mendoza’s actions, the reasonable
suspicion inquiry is not a “divide-and-conquer analysis” and must take into account
the totality of the circumstances. Arvizu, 534 U.S. at 274. Under these
circumstances, we conclude Officer Mendoza had reasonable, articulable suspicion
to stop and frisk Hernandez.
2. The parties agree the oral pronouncement of Hernandez’s sentence controls
over the written judgment. Therefore, we remand with instructions to amend the
written judgment to conform with the orally pronounced conditions of supervised
release. United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015).
AFFIRMED in part and REMANDED in part.
3