UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5031

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ALEJANDRO REINOSO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. James A. Beaty, Jr., Chief

District Judge. (1:05-cr-00380-JAB-3)

Submitted: May 30, 2007 Decided: July 9, 2007

Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas H. Johnson, Jr., GRAY, JOHNSON, BLACKMON, LEE & LAWSON, LLP,

Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,

United States Attorney, L. Patrick Auld, Assistant United States

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Alejandro Reinoso appeals his convictions and sentence

for counterfeiting charges and making false statements to the

Department of Homeland Security. Reinoso was a passenger in a

vehicle parked in an Auto Zone parking lot in Asheboro, North

Carolina. When approached by an Asheboro police officer, the

driver of the vehicle consented to a search of the vehicle.

Counterfeit currency and a firearm and ammunition were found in the

vehicle. Upon arrest, Reinoso gave agents a false name and stated

that he was unaware of the firearm and counterfeit currency. He

proceeded to trial and was convicted for conspiracy to pass and

utter and attempt to pass and utter, keep in possession and conceal

counterfeited Federal Reserve Notes, possession and concealment of

counterfeited Federal Reserve Notes, and false statements to

Department of Homeland Security. At sentencing, he received

enhancements for possession of a firearm and obstruction of

justice, and received a twenty-six month sentence.

First, Reinoso makes a conclusory argument that the

arresting officer’s investigative methods and detention of him were

not supported by an articulable suspicion. Although Reinoso’s

brief cites several Fourth Amendment cases, his only argument

related to his own case is that the officer did not have reasonable

suspicion to seize Reinoso, a passenger, due to the driver’s
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nervousness and the passengers’ conflicting travel plans. Reinoso

did not file a motion to suppress evidence prior to trial. 

Rule 12(b)(3) of the Federal Rules of Criminal Procedure

requires motions to suppress evidence be made before trial. United

States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Failure to

make a motion to suppress before trial constitutes waiver unless

the trial court grants relief from the waiver under Rule 12(e) for

cause shown. Fed. R. Crim. P. 12(e); United States v. Ricco, 52

F.3d 58, 62 (4th Cir. 1995). Reinoso therefore must show cause for

his failure to file a pretrial motion to suppress. Reinoso failed

to raise the issue of suppression based on improper arrest and

investigative methods prior to or during trial, and he does not

allege cause for his failure to do so. We therefore conclude he

has waived his right to assert his constitutional objections by

failing to file a motion to suppress the evidence prior to trial.

Next, Reinoso alleges that Count Six of the indictment

was defective. Count Six of the superseding indictment charged

Reinoso with a violation of 18 U.S.C.A. § 1001(a)(2) (West 2000 &

Supp. 2007). It alleged that Reinoso falsely told a Secret Service

agent that he was not aware that counterfeit notes and a firearm

were in the vehicle in which he was traveling, and that

Martinez-Orozco and Gonzalez had given him a ride from Greenwood,

South Carolina, to Asheboro, North Carolina, to see his cousin, for

whom Reinoso did not have a name or contact information. 
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Reinoso alleges that Count Six of the indictment was

defective because, with regard to the firearm statement, the count

alleging possession of a firearm by an illegal alien was dismissed

at the close of evidence. Therefore, he argues, his statement to

the agent was legally correct. Reinoso also alleges in a

conclusory manner that the district court illegally amended the

indictment. Although he provides numerous case citations to

unlawful amendment cases, he does not specify how the court

unlawfully amended the indictment. The record does not reflect an

amendment, and Reinoso does not provide a transcript of the jury

instructions in the joint appendix.

A challenge alleging a defect in the indictment must be

made prior to trial, “but at any time while the case is pending,

the court may hear a claim that the indictment or information fails

to invoke the court’s jurisdiction or to state an offense.” Fed.

R. Crim. P. 12(b)(3). A challenge to a defective indictment is

waived if it is not brought within the deadline outlined in Rule

12(b)(3). However, “[f]or good cause shown, the court may grant

relief from the waiver.” Fed. R. Crim. P. 12(e); see also United

States v. Price, 763 F.2d 640, 643 (4th Cir. 1985) (applying former

version of Rule 12(e)). Reinoso failed to establish that he raised

this issue prior to, or any point during, trial and also failed to

establish any cause for waiver. Therefore, we conclude that the

claim is waived.
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Reinoso challenges the enhancements he received to his

sentence for possession of a firearm and obstruction of justice.

Reinoso received an enhancement for possession of a firearm in

connection with the counterfeit charges. See U.S. Sentencing

Guidelines Manual § 2B5.1(b)(4) (2005). He argues that it was

improper to apply the enhancement because the district court found

under Fed. R. Crim. P. 29 that the evidence would not support a

finding of possession of a firearm beyond a reasonable doubt,

absent evidence that he knew or should have known that a

co-conspirator possessed a gun in relation to the offense. 

First, a court may impose sentencing enhancements based

on a preponderance standard based on conduct that did not satisfy

a reasonable doubt standard at trial. See United States v. Watts,

519 U.S. 148, 154 (1997). The guideline applicable to

counterfeiting violations is USSG § 2B5.1. The base offense level

under USSG § 2B5.1 is nine. USSG § 2B5.1(a). The Guidelines

further add a two-level enhancement to the base offense level of

nine if “a dangerous weapon (including a firearm) was possessed in

connection with the offense . . . . If the resulting offense level

is less than 13, increase to level 13.” USSG § 2B5.1(b)(4).

Because Reinoso was involved in “jointly undertaken criminal

activity,” this enhancement applies not only if he possessed a

firearm, but also based on “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken
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criminal activity, that occurred during the commission of the

offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that

offense . . . .” USSG § 1B1.3(a). 

We find that the evidence amply supported the enhancement

for possession, even if Reinoso did not physically possess the

firearm. The size of the rear compartment and items in plain view

prove by a preponderance of the evidence that it was reasonably

foreseeable that the firearm was used to protect the counterfeit

notes found throughout the car and that Reinoso should have been

aware that his co-conspirators possessed the firearm. See United

States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999)

(affirming USSG § 2B5.1(b)(4) enhancement because district court

reasonably concluded that firearm was possessed by defendant “to

protect his [counterfeit] merchandise” and noting dangerousness of

dealing in counterfeit currency).

Finally, Reinoso argues on appeal that the court erred in

applying the enhancement because giving a false name when he was

arrested did not significantly impede the investigation. Reinoso

received a two-level enhancement for providing a false statement to

law enforcement under USSG § 3C1.1. Reinoso was convicted under 18

U.S.C.A. § 1001(a)(2) of making false statements to Department of

Homeland Security and the Secret Service including his statement

that he was not aware that counterfeit notes were in the car in
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which he was traveling. Reinoso gave a false name at arrest, and

later his fingerprints were matched to fingerprints on the

counterfeit notes. The presentence report (PSR) states that the

adjustment for obstruction was made on the false statements made to

case agents and the false name given to the magistrate judge and

the district court. At sentencing, the district court found that

Reinoso had made a false statement that he was unaware of the

counterfeit notes and it was later determined that his fingerprints

were found on the notes. Under the commentary to USSG § 3C1.1, “if

the defendant is convicted of a separate count for [obstructive]

conduct, this adjustment will apply and increase the offense level

for the underlying offense (i.e., the offense with respect to which

the obstructive conduct occurred).” USSG § 3C1.1 comment. (n.5).

Although the PSR does include false statements given to

the case agents, the magistrate judge, and the district court, the

district court specifically found that the enhancement applied

based on the false statement that Reinoso was unaware of the

counterfeit notes. Because Reinoso was convicted for making a

false statement related to this obstructive conduct, it was not

error for the court to apply the enhancement under Application Note

5.

 We therefore affirm Reinoso’s convictions and sentence.

We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process. 

AFFIRMED