UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4393

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDWIN ARIAS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. James R. Spencer, Chief

District Judge. (3:05-cr-00435-JRS)

Submitted: November 27, 2006 Decided: January 12, 2007

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Acting Federal Public Defender, Robert J.

Wagner, Assistant Federal Public Defender, Sapna Mirchandani,

Research and Writing Attorney, Richmond, Virginia, for Appellant.

Chuck Rosenberg, United States Attorney, Sara E. Flannery,

Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
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PER CURIAM:

Following a bench trial, Edwin Arias was convicted of

operating a motor vehicle while under the influence of alcohol

(third offense in five years) (Count One), and operating a motor

vehicle after his license was suspended for driving while under the

influence of alcohol (Count Two). 18 U.S.C. § 13 (2000),

assimilating Va. Code Ann. §§ 18.2-266, 18.2-270, and 18.2-272

(2005). Arias was sentenced to five months’ imprisonment and one

year supervised release on each count, to run concurrently. Arias

challenges the denial of his motion to suppress and his

convictions. 

Evidence adduced at trial established that on September

4, 2005, at approximately 12:30 a.m., Fort Lee Police Officer

Michael Griffith observed Arias’ car stopped at a green light.

Griffith noticed that the front right turn signal was blinking and

hanging under the car approximately four to six inches from the

pavement. Concerned Arias might be unaware that his vehicle had

sustained damage, Griffith stopped the vehicle, and asked Arias to

exit the vehicle to inspect the damage. Griffith noticed Arias

appeared unsteady on his feet. Shortly thereafter, Sgt. William

Smoot arrived on the scene, at which time Griffith took Arias’

license, a Virginia driver’s license with a large red “R” on it,
1The restrictions on Arias’ license permitted him to drive to

and from medical appointments, work, and Virginia Alcohol Safety

Action Program meetings. 

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and returned to his vehicle to process it. The check of the

license elicited that it was restricted.1 

Having detected a strong smell of alcohol emanating from

the vehicle, Smoot conducted two field sobriety tests, both of

which Arias failed. Arias was taken into custody and transported

to the military police station where he consented to blood alcohol

analysis. Griffith administered the blood alcohol test, which

revealed that Arias’ blood alcohol content was .24. Subsequent to

releasing Arias, Griffith investigated Arias’ driving record and

learned that he was twice convicted of driving under the influence,

and that his license was suspended for three years in August 2003.

Prior to trial, Arias moved to suppress all evidence

obtained during and subsequent to the traffic stop, claiming that

the stop was not supported by probable cause or reasonable

suspicion. Emphasizing Griffith’s observation that Arias remained

stopped at a green light and that, in Griffith’s mind, the right

turn signal was defective, the court concluded that Griffith’s

decision to stop Arias was reasonable and rational and denied the

motion. Following a bench trial at which the Government presented
2Although Arias was originally charged in a five-count

indictment, the Government moved to dismiss Count Four, and the

district court found Arias not guilty on Counts Three and Five. 

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the testimony of Griffith and Smoot, the district court found Arias

guilty on Counts One and Two.2

Arias raises three issues on appeal. Arias first

maintains that the district court erred in denying his motion to

suppress. This court reviews the district court’s factual findings

underlying a motion to suppress for clear error, and the district

court’s legal determinations de novo. United States v. Grossman,

400 F.3d 212, 216 (4th Cir. 2005). “[A]n officer may, consistent

with the Fourth Amendment, conduct a brief, investigatory stop when

the officer has a reasonable, articulable suspicion that criminal

activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000);

Terry v. Ohio, 392 U.S. 1, 30 (1968). Any seizure of a person,

including an ordinary traffic stop, must be supported by specific

and articulable facts leading to probable cause or reasonable

suspicion. United States v. Hassan El, 5 F.3d 726, 729 (4th Cir.

1993). 

Arias argues that because he had not actually violated

Virginia law, Griffith did not have probable cause or reasonable

suspicion to stop his vehicle; thus, Arias contends, the district

court should have granted the motion to suppress. However, if an

officer makes a traffic stop based on a mistake of fact, the only

question is whether his mistake of fact was reasonable. See United
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States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003)

(concluding that “an officer’s reasonable mistake of fact may

provide the objective grounds for reasonable suspicion or probable

cause required to justify a traffic stop, but an officer’s mistake

of law may not”); United States v. Cashman, 216 F.3d 582, 587 (7th

Cir. 2000) (holding that propriety of traffic stop does not depend

on whether defendant is guilty of committing traffic offense but

rather whether it was reasonable for officer to believe that a

traffic offense had been committed). Even if Griffith was mistaken

in his belief that the damage to Arias’ car amounted to a violation

of Virginia law, this was a reasonable mistake of fact. A review

of Griffith’s testimony supports the district court’s decision that

it was reasonable for Griffith to believe that a traffic violation

had been committed and therefore the stop was objectively

reasonable. Thus, we find the district court properly denied the

motion to suppress. 

Arias next argues the Government presented insufficient

evidence to support the conviction on Count One, and thus the

district court erred in denying his Fed. R. Crim. P. 29 motion for

a judgment of acquittal on that count. This court reviews the

denial of a Rule 29 motion de novo. United States v. Alerre, 430

F.3d 681, 693 (4th Cir. 2005). Where, as here, the motion was

based on a claim of insufficient evidence, “[t]he verdict of a jury

must be sustained if there is substantial evidence, taking the view
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most favorable to the Government, to support it.” Glasser v.

United States, 315 U.S. 60, 80 (1942). This court “ha[s] defined

‘substantial evidence’ as evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion of

a defendant’s guilt beyond a reasonable doubt.” Alerre, 430 F.3d

at 693 (internal quotations and citation omitted). This court

“must consider circumstantial as well as direct evidence, and allow

the government the benefit of all reasonable inferences from the

facts proven to those sought to be established.” United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). This court “may not

weigh the evidence or review the credibility of the witnesses.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997). 

Arias’ challenge to the sufficiency of the Government’s

evidence relevant to Count One fails. Count One charged Arias with

driving under the influence of alcohol, third offense in five

years. The Government presented more than sufficient evidence to

establish that Arias was driving under the influence of alcohol,

including Griffith’s testimony regarding Arias’ “strange” driving

and that he was unsteady on his feet, and Smoot’s testimony that

Arias failed two field sobriety tests. Thus, contrary to Arias’

assertion, the court did not rely exclusively on the fact that

Arias’ blood alcohol content was .24. The Government also

presented unrefuted evidence to establish Arias’ prior convictions

for driving under the influence of alcohol. 
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Lastly, Arias asserts that the Government’s evidence

relevant to Count Two constructively amended the indictment,

resulting in a fatal variance. A defendant may only be tried on

charges alleged in an indictment, and “only the grand jury may

broaden or alter the charges in the indictment.” United States v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999) (citing Stirone v.

United States, 361 U.S. 212, 215-16 (1960)). A constructive

amendment to an indictment occurs when either the government or the

court broadens the possible bases for conviction beyond those

charged by the grand jury. United States v. Bolden, 325 F.3d 471,

493 (4th Cir. 2003). 

Arias’ argument on this issue is essentially one of

statutory construction. Count Two assimilated Va. Code Ann.

§ 18.2-272, which provides as follows: 

Any person who drives or operates any motor vehicle . .

. in the Commonwealth during the time for which he was

deprived of the right to do so (I) upon conviction of a

violation of § 18.2-268.3 or of an offense set forth in

subsection E of § 18.2-270, (ii) by § 18.2-271 or

46.2-391.2, (iii) after his license has been revoked

pursuant to § 46.2-389 or 46.2-391, or (iv) in violation

of the terms of a restricted license issued pursuant to

subsection E of § 18.2-271.1, is guilty of a Class 1

misdemeanor except as otherwise provided in § 46.2-391,

and is subject to administrative revocation of his

driver’s license pursuant to §§ 46.2-389 and 46.2-391. 

Va. Code Ann. § 18.2-272(A) (2005). Arias argues the indictment

charged him with violating subsection (ii) because it charged him

with driving after having his driver’s license suspended. Arias

contends that, because Griffith’s testimony established that Arias
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was driving while under the influence of alcohol in violation of

the terms of his restricted license, in violation of subsection

(iv), the Government’s evidence constructively amended the

indictment.

We conclude that Arias’ argument lacks merit. Under

Virginia law, an individual whose driving privileges are suspended

or revoked may petition the convicting court for the issuance of a

restricted license. Va. Code Ann. § 18.2-271.1 (2005). If the

convicting court grants the petition, the Department of Motor

Vehicles must issue the restricted license. Va. Code Ann. § 18.2-

271.1(C) (2005). However, “the license revocation . . . remains in

effect” despite the issuance of the restricted license. Salama v.

Commonwealth, 45 Va. Cir. 446, 1998 WL 972196, *3 (Va. Cir. Ct.

1998). The Supreme Court of Virginia has explained that “[b]y

authorizing a circuit court to restore the privilege on whatever

conditions the court may prescribe, the General Assembly did not

intend for a restoration of driving privileges subject to courtimposed conditions to have the same legal effect as a restoration

without any conditions.” Commonwealth v. Norman, 604 S.E.2d 82, 86

(Va. 2004). Thus, Arias’ contention that because he had received

a restricted license, his license was no longer suspended, lacks

merit. As the district court noted, “even though the license is

restricted, he is suspended with the restrictions.” J.A. 112. The

Government’s evidence that Arias had a restricted license does not
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amount to a fatal variance from the offense charged in the

indictment. 

For the foregoing reasons, we affirm Arias’ convictions

and sentence. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED