Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40559

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DAVID LYLE GONZALES

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:08-CR-36-1

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

David Lyle Gonzales appeals his bench trial conviction for transporting

and moving undocumented aliens within the United States by motor vehicle. He

contends that the district court erred by denying his motion to suppress all

evidence obtained following a traffic stop of his vehicle because the Border Patrol

agent who stopped his vehicle lacked reasonable suspicion.

United States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-40559

2

In reviewing the denial of a motion to suppress, the district court’s

findings of fact are reviewed for clear error and its conclusions of law are

reviewed de novo. United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir.

2005). “[W]e view the evidence in the light most favorable to the party

prevailing below, which in this case is the Government.” Id.

“A border patrol agent conducting a roving patrol may make a temporary

investigative stop of a vehicle only if the agent is aware of specific articulable

facts, together with rational inferences from those facts, that reasonably warrant

suspicion that the vehicle’s occupant is engaged in criminal activity.” United

States v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). In assessing whether the

stop was supported by reasonable suspicion, we consider the totality of the

circumstances in light of factors set forth in United States v. Brignoni-Ponce, 422

U.S. 873, 884-85 (1975). Id.

In the present case, United States Border Patrol Agent Donald Joseph

Kenefrick testified that he initially observed Gonzales’s Ford Expedition on

Highway 44 near Freer, Texas, almost 60 miles from the Mexican border. As

there was no evidence presented that Agent Kenefrick had reason to believe that

Gonzales’s vehicle had come from the border, the proximity to the border factor

is not present and we must examine the remaining factors charily. See United

States v. Rodriguez-Rivas, 151 F.3d 377, 380 (5th Cir. 1998).

Agent Kenefrick, who has worked as a Border Patrol agent in the Freer

area for four years, testified that the area was commonly used by smugglers, as

demonstrated by the daily complaints the Border Patrol received from area

residents and the number of arrests he had made in the area. This testimony

showed that the characteristics of the area factor, the information about recent

illegal trafficking in the area factor, and the experience of the agent factor

weighed in favor of reasonable suspicion. See Jacquinot, 258 F.3d at 428-30.

Agent Kenefrick averred that it was unusual for a vehicle not related to the oil

industry to be traveling on Highway 44 at 5:30 a.m. as Gonzales was, making
No. 08-40559

3

the usual traffic patterns factor weigh in favor of reasonable suspicion. See id.

at 429. He further maintained that the rear bumper of Gonzales’s Expedition

was riding lower than the front bumper, indicating that something heavy was

in the vehicle beyond the driver and four passengers that he was able to see.

This testimony showed that the characteristics of the vehicle factor and the

number, appearance, and behavior of the passengers factor weighed at least

slightly in favor of reasonable suspicion. See United States v. Lopez-Gonzalez,

916 F.2d 1011, 1015 (5th Cir. 1990); United States v. Zapata-Ibarra, 212 F.3d

877, 883 (5th Cir. 2000). Agent Kenefrick testified that when Gonzales passed

his marked patrol vehicle, Gonzales tapped his breaks even though he was not

speeding. When Gonzales approached Freer, he made a left turn onto a

residential street, and Agent Kenefrick testified that smugglers commonly

turned onto a residential street in Freer to avoid the well lit intersection of

Highway 59 and Highway 16 because there was usually a law enforcement

officer stationed at that intersection. Accordingly, the behavior of the driver

factor weighed in favor of reasonable suspicion. See Jacquinot, 258 F.3d at 429-

30; United States v. Villalobos, 161 F.3d 285, 291 (5th Cir. 1998).

While the important proximity to the border factor weighed against

reasonable suspicion, the totality of the circumstances showed that Agent

Kenefrick had a reasonable suspicion of illegal activity sufficient to make the

traffic stop. See Jacquinot, 258 F.3d at 430; United States v. Aldaco, 168 F.3d

148, 150-52 (5th Cir. 1999). Accordingly, the district court did not err by denying

the motion to suppress. See Jacquinot, 258 F.3d at 430.

Gonzales also argues that the written judgment does not properly reflect

the correct term of supervised release imposed by the district court at a

resentencing hearing. The written judgment, however, was entered after the

resentencing hearing, and the minute entry of the resentencing hearing is

unsigned and does not unequivocally show that the written judgment is

incorrect. A transcript of the resentencing hearing does not appear in the record,
No. 08-40559

4

and Gonzales has not requested a transcript of the hearing for the present

appeal. Gonzales, as the appellant, has the duty to request the necessary

transcripts for his appeal. See FED. R. APP. P. 10(b)(1); FED. R. APP. P. 11(a). As

the record is insufficient to substantiate Gonzales’s assertion, he is not entitled

to relief. See Powell v. Estelle, 959 F.2d 22, 26 (5th Cir. 1992). If Gonzales can

demonstrate in the future that the written judgment does not reflect the oral

pronouncement of sentence and is the result of a clerical error, he can file a

motion to correct the clerical error in the district court. See FED. R. CRIM. P. 36.

AFFIRMED.