FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MARCH 22, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13853

Non-Argument Calendar

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D. C. Docket No. 08-00021-CR-HLM-2-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ESTEBAN PACHECO PINEDA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(March 22, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

Esteban Pacheco Pineda appeals his convictions and sentences for drug and

firearm related offenses. We affirm.
I. Background

In early 2008, a confidential informant (“CI”) advised Bartow County

Sheriff’s Office detective Mark Mayton that Jose Chavez was selling

methamphetamine. Mayton had worked with this CI before and knew her to be

reliable. Mayton conducted several controlled buys from Chavez before arranging

to purchase a large quantity of drugs. On the night of the scheduled buy,

the CI informed Mayton that Chavez was driving a silver Dodge pick-up truck and

might be carrying weapons. The CI later advised that there were two other cars

following the pick-up: a silver Honda Civic and a dark colored Ford Expedition.

Police surveillance corroborated the CI’s information and observed these three cars

leaving Chavez’s home in quick succession, with the Ford Expedition appearing to

conduct counter-surveillance. Because weapons were involved, Mayton decided

not to wait until the buy to intercept the sellers; instead, he instructed officers to

stop all three vehicles. Although the CI never mentioned Pineda to Mayton,

Pineda was driving the Ford Explorer.

Officer Billy Lancaster of the K-9 unit stopped the Ford Explorer. Pineda

gave Lancaster his Mexican driver’s license and told Lancaster that he lived in

Georgia. Lancaster arrested Pineda for driving without a proper license.

Lancaster’s subsequent search of the Explorer uncovered a hand gun under the

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front seat. Following his arrest, Pineda was interviewed by Agent Tim Everhart of

the U.S. Immigration and Customs Enforcement. Pineda, having been advised of

his rights, agreed to talk with Everhart. During the interrogation, Pineda admitted

the gun taken from the Explorer was his. He denied any participation with drugs.

Pineda was indicted along with Chavez and two others for conspiracy to

possess with the intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 846 (Count 1); possession with the intent to distribute methamphetamine, in

violation of 21 U.S.C. § 841 (Count 2); possession of a firearm in furtherance of a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 3); and

being an illegal alien in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(5) (Count 4).

Pineda moved to suppress the evidence seized and any statements made on

the grounds that the traffic stop and subsequent search were illegal. He argued that

the CI’s information was insufficient because the CI had no knowledge of Pineda

and his mere presence was not enough to justify the stop and search.

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 Pineda further argued that there was no basis to arrest him for driving without a proper 1

license and that the search was the result of an illegal arrest. The magistrate judge agreed that

there was no proof Pineda was driving without a proper license. Nevertheless, the magistrate

judge found that the officer had probable cause to arrest Pineda as part of the drug conspiracy

based on the CI’s information and their own surveillance. The magistrate judge found the

officer’s subjective reason for the arrest was not relevant. Pineda does not challenge his arrest

on these grounds on appeal. Therefore, this argument has been abandoned. United States v.

Smith, 416 F.3d 1350, 1354 (11th Cir. 2005).

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The district court accepted the magistrate judge’s recommendation and

denied the motion to suppress, finding that there was probable cause for the

officers to believe that the individuals in the three cars were involved in drug

activity.

Chavez pleaded guilty and testified against Pineda at trial. Pineda was

convicted of all four counts. The guidelines range was 151 to 188 months’

imprisonment, but counts one and two carried ten-year mandatory minimum

sentences, and count three carried a consecutive five-year mandatory minimum

sentence. Pineda objected to the mandatory minimums as unconstitutional. The

court sentenced Pineda to: 151 months’ imprisonment on count one, 151 months

on count two, and 120 months on count 4, to be served concurrently. The court

imposed a consecutive 60-month sentence on count three, for a total of 211

months’ imprisonment.

Pineda now appeals, challenging the district court’s denial of his motion to

suppress and the mandatory minimum sentences to which he was subjected.

II. Standard of Review

We review the denial of a defendant’s motion to suppress under a mixed

standard of review. The district court’s factual findings are reviewed under the

clearly erroneous standard and the application of law to those facts is reviewed de

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novo. United States v. Desir, 257 F.3d 1233, 1235-1236 (11th Cir. 2001). All

“facts are construed in the light most favorable to the prevailing party.” United

States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002). Our review of a motion

to suppress examines the entire record, including trial testimony. United States v.

Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). We review the constitutionality

of statutes de novo. United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir.

2000). “The Eighth Amendment, which forbids cruel and unusual punishments,

contains a narrow proportionality principle that applies to noncapital sentences.”

Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108

(2003) (quotations omitted).

III. Discussion

A. Motion to Suppress

On appeal, Pineda argues that the district court erred in denying his motion

to suppress because the vehicle stop by police constituted an arrest rather than a

traffic stop, and law enforcement officers lacked probable cause to arrest him.

Moreover, Pineda contends that the information from a confidential informant was

insufficient to justify the stop.

Under the Fourth Amendment, individuals are protected from unreasonable

searches and seizures by the government. Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct.

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1868, 1873, 20 L.Ed.2d 889 (1968). “This fundamental right is preserved by a

requirement that searches be conducted pursuant to a warrant issued by an

independent judicial officer.” California v. Carney, 471 U.S. 386, 390, 105 S.Ct.

2066, 2068, 85 L.Ed.2d 406 (1985). “However, the search and seizure of vehicles

without a warrant is permissible when the police have probable cause to believe a

vehicle contains contraband.” United States v. Virden, 488 F.3d 1317, 1321 (11th

Cir. 2007). “Probable cause exists when there is a fair probability that contraband

or evidence of a crime will be found.” Id. at 1322 (quotations omitted).

Here, the district court did not err in denying Pineda’s motion to suppress

because there was a fair probability that law enforcement officers would find

evidence of drug trafficking crimes in Pineda’s vehicle. Mayton had worked with

the CI before and found her to be reliable. The CI informed Mayton on the night

of the controlled buy that two other cars were following Chavez’s Dodge pick-up,

and corroborating police surveillance observed Pineda’s Ford Explorer behind the

pick-up, appearing to conduct counter-surveillance. Moreover, the CI advised

Mayton that weapons might be involved, a likely scenario given the amount of

drugs Mayton had arranged to buy. On these facts, we conclude that officers had

probable cause to believe they would find weapons or drugs in the cars; thus, the

stop was justified.

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B. Mandatory Minimum Sentences

Pineda argues his mandatory minimum sentences violated the Eighth

Amendment’s prohibition against cruel and unusual punishment. He concedes,

however, that Supreme Court precedent forecloses his argument before this court

and submits that he is preserving this argument for appeal.

Here, Pineda’s mandatory minimum sentences did not violate the Eighth

Amendment. As Pineda concedes, this court has rejected an Eighth Amendment

challenge to mandatory minimum sentences. See United States v. Johnson, 451

F.3d 1239, 1243-44 (11th Cir. 2006). Accordingly, Pineda’s argument is

foreclosed by circuit precedent.

For the foregoing reasons, we affirm Pineda’s convictions and sentences.

AFFIRMED.

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