### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-51083 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. BAUDELIO SANCHEZ-MENDOZA, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 7:09-CR-3-1

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM: * Pursuant to a written plea agreement, Baudelio Sanchez-Mendoza conditionally pleaded guilty to aiding and abetting possession of, with intent to distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. Sanchez contends: the vehicle stop that lead to his arrest was illegal, and , therefore, the district court erred in denying his motion to suppress evidence; and, because his actions were not illegal and there U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 5, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-51083 Document: 00511529348 Page: 1 Date Filed: 07/05/2011No. 10-51083

was no evidence to link him to criminal activity, other than his presence at the suspected stash house, the factual basis for his guilty plea is insufficient. In conte n di n g that the investigative vehicle stop was illegal, Sanchez challenges only the first prong of the two-part , reasonable-suspicion inquiry articulated in Terry v. Ohio , 392 U.S. 1 , 1 9

- 2 0 (1968): whether the Drug Enforcement Administration Agents’ conduct was “justified at its inception”. A vehicle stop i s justified at its inception when an officer has an objectively reasonable suspicion, supported by specific and articulable facts, that criminal activity has occurred or is about to occur. Terry , 392 U.S. at 21; United States v. Lopez-Moreno , 420 F.3d 420, 430 (5th Cir. 200 5). For the denial of the suppression motion, the district court’s fin di n g s o f fact are reviewed for clear error; its legal conclusions, including the reasonablesuspicion determination, de novo . Ornelas v. United Sta t e s , 517 U.S. 690, 699 (19 9 6); e.g. , United States v. Santiago , 410 F.3d 193, 197 (5th Cir. 2005). The evidence is reviewed in the light most favorable to the prevailing party—here, the Government. Santiago , 410 F.3d at 197. I n this instance, it was not merely Sanchez’ presence at the suspe c t e d stash house that aroused the Agents’ suspicion. At the time of the stop, they had information from a cooperating individual (CI) that the CI had picked up cocaine from chicken-coop structures at a specific loc ation; the Agents observed an expensive vehicle (Humme r), seemingly out of place, driving in a poor, rural
area; and the Agents watched Sanchez, who had been sitting outside one of the chicken coops, place a heavy looking, orange object in the back of the Hummer. Further, in the Agents’ experience, chicken coops are often used to store drugs, and vehicles such as Hummers are often used by drug traffickers. Considering the totality of the circumstances, and giving due weight to the factual inferences drawn by the Agents and district court, see Ornelas , 517 U.S. at 699, this information provided the Agents a “particularized and objective basis” for stopping the Hummer, in which Sanc hez was a passenger. See, e.g. , 2 Case: 10-51083 Document: 00511529348 Page: 2 Date Filed: 07/05/2011No. 10-51083

United States v. Arvizu , 534 U.S. 266, 273 (2002) (citation and internal quotation marks omitted). The Agents had reasonable suspicion to believe that Sanchez

was engag e d in illegal activity; therefore, the district court did not err by denying Sanchez’ motion to suppress. In contending the evidence was factu ally an d l e gally in s uf f ici e nt to s upport his guilty plea, Sanchez: cites inapposite opinions concerning jury verdicts; and, in that reg a r d , maintains the evidence shows equal, or nearly equal, circumstantial support to a theory of guilt as to a th e o ry o f i nnocence, and, accordingly, claims reversal of his conviction is required. Without citation to the record, Sanchez claims he “raised his sufficiency claims in a timely motion” and, therefore, this issue should be reviewed de novo . His appeal waiver does not preclude review of the sufficiency of the factual basis of his guilty plea, see, e.g. , United States v. Garcia-Paulin , 627 F.3d 127, 131 n.2 (5th Cir. 2010); as the Government points out, however, Sanchez pleaded guilty and did not raise any objection or challenge in district court to the sufficiency of the factual basis. Accordingly, this newly-raised challenge is reviewed only for plain error. See, e.g. , id. at 131. For reversible plain error, there must be a clear

or obvious error that affected Sanchez’ substantial rights; even then, we retain discretion t o correct the error and, generally, will do so only if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings”. E.g. , id. ; United States v. Villegas , 404 F.3d 355, 358-59 (5th Cir. 2 005). Along that line, Sanchez does not challenge, and, therefore has waived any challenge to, the sufficiency of the factual b a s i s for the aiding-and-abetting portion of the charge d o f f e nse. See, e.g. , United States v. Scroggins , 599 F.3d 433, 446-47 (5th Cir.) (issues not briefed adequ ately on direct criminal appeal are waived), cert. denied , 131 S. Ct. 158 (2010). T o determine whether there was error regarding the sufficiency o f th e f a c tu al basis, the elements of the charged offense are compared with the facts admitted by Sanchez, e.g. , Garcia-Paulin , 627 F.3d at 13 1 ; a n d, under plain3 Case: 10-51083 Document: 00511529348 Page: 3 Date Filed: 07/05/2011No. 10-51083

error review, we may analy z e o th e r facts in the record that support his conviction, e.g. , United States v. Trejo , 610 F.3d 308, 313 (5th Cir. 2010). The elements of a § 841(a)(1) offense are knowing pos s e s s i on, with an intent to distribute, a controlled substance. E.g. , United States v. Gamez-Gonzalez , 319 F.3d 695, 699 (5th Cir. 2003). Section 841(b)(1)(A) prescribes penalties based on the drug type a nd quantity involved in the § 841(a)(1) offense; here, the § 841(a)(1) offense involved five kilograms or more of cocaine. Se e 2 1 U.S.C. § 841(b)(1)(A)(ii)(II); Gamez-Gonzalez , 319 F.3d at 699-700. At rearraignment, the Government asserted: if a trial were held, it would
prove beyond a reaso n ab l e doubt that Sanchez “had received [tele]phone calls earlier [on the day of his arrest] from an individual who said that someone would be coming to pick [the] cocaine up from him later that day”, and “when that
person never arrived, [Sanchez] went to transport the cocaine back to his house to await someone to come pick it up”; and a lab report showed that the amount of cocaine involved was over five kilograms. Sanchez agreed under oath that the factual basis and facts represented by th e G o v e rnment were true and correct: “that he possessed [the cocaine] with the intent to distribute”. These facts, bol s t e red by the Agents’ suppression-hearing testimony regarding Sanchez’ i n c ri minating statements to them after his arrest, demonstrate that Sanchez knowingly possessed cocaine with an intent to distribute it to the pe r s o n w h o

was to obtain it from him. See i d

. a t 699-700. Accordingly, Sanchez has not shown error regarding the sufficiency of the factual basis for his guilty plea. AFFIRMED.

4 Case: 10-51083 Document: 00511529348 Page: 4 Date Filed: 07/05/2011