UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. HICKORY WESLEY McCOY, Defendant - Appellant. No. 13-4137 (D.C. No. 2:12-CR-0 0218-TS-DBP-1) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , BALDOCK , and EBEL , Circuit Judges.

________________ _________________ Defendant-Appellant Hickor y McCoy appeals from the district court’s order denying his motion to suppress a nd the district court’s final j udgment of convi ction. Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM. BACKGROUND The issues on appeal flow from a routin e traffic stop of McCoy’s vehicle that Utah Highway Patrol Trooper Randy Riches conducted in 2012. According to Trooper Riches, who testified at the suppression hearings befo re the district court, he first saw McCoy’s vehicle in his rearview mirror as McCoy, who was traveling eastbound in the left lane of Interstate 80, approached Trooper Riches’s patrol car,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 23, 2015
Elisabeth A. Shumaker Clerk of Court2 which was parked on the right-hand side of the road on eastbound Interstate 80. A second vehicle was traveling directly behind McCoy, and a third vehicle was traveling in the right eastbou nd lane slightly in front of , and faster than, McCoy. Trooper Riches estimated that the tail vehi cle was following McCoy at a distance of approximately one-and-a-half seconds. Given this close proximity, Trooper Riches believed that McCoy was violating Utah’s left-lane statute, see Utah Code § 41-6a-704, which prohibits vehicles in the left lane from im peding traffic behind them. 1 After observing what he believed to be a traffic violation but without activating his emergency lights or siren, Trooper Riches pulled into the right lane, accelerated rapidly, and followed the trio of vehicles for approxi mately a mile and a half. According to Trooper Riches, McCoy had an oppor tunity to move over to the right lane during this time but failed to do so. Upon stopping McCoy, Trooper Riches detected a faint odor of marijuana. Trooper Rich es thereafter requested a drug-sniffing dog. The dog in dicated at the odor of narc otics, so Trooper Riches searched McCoy’s vehicle. Trooper Riches’s search uncovered ma rijuana, drug paraphernalia, a handgun, and ammunition, and as a result, McCoy was charged with possession of marijuana with intent to distribute (C ount 1), possession of a firear m in furtherance of a drug-

1 Under section 41-6a-704(3), when one vehicle is following directly behind a leading left-lane vehi cle at a distance of less than two seconds , it is prima facie evidence that the leading vehicle is violating the left-lane statute.3 trafficking crime (Count 2) , and felon in possession of a firearm and ammunition (Count 3). All three counts also included aiding and ab etting charges. Before trial, McCoy filed a motion to suppress the evidence found in his vehicle. Specifically, McCoy argued that the initial traffic stop was invalid at its inception, and therefore unconstitutional, b ecause (1) Trooper Riches did not have a reasonable suspicion that a traffic violation was occurr ing or had occurred, and (2) Trooper Riches effectively prevented McCoy from moving into the right lane by pursuing the trio of vehicles . The district court denied the motion after holding an evidentiary hearing, finding that Trooper Riches’s te stimony established that he possessed a reasonable articula ble suspicion to initiate th e traffic stop and that his patrol car did not prevent Mc Coy from moving into the right lane. The district court also found that the evidence suppor ted Trooper Riches’s testimony. A jury trial followed. At the close of evidence, McCoy and the Government submitted joint jury instruct ions to the district court. The jury ultimately found McCoy guilty on all three counts charged in the indictment, and the district court entered a final judgment sentencing McC oy to 200 months’ imprisonment. McCoy filed a timely notice of app eal, challenging both the distri ct court’s or der denying his motion to suppress and the district c ourt’s final judgment of conviction. ANALYSIS I. Motion to Suppress Where, as here, an office r initiates a traffic stop fo r a suspected violation of the law, the stop is justified under the Fourth Amendment only if the officer4 possessed a “reasonable suspic ion” that the particular person stopped was breaking the law. Heien v. N. Carolina, 135 S. Ct. 530, 536 (2014). In denying McCoy’s motion to suppress the ev idence found in his vehicle, the district court concluded that the stop of McCoy’s vehicle was constitutio nal because Trooper Riches possessed a reasonable suspicion that McC oy had violated Utah’s left-l ane statute. On appeal, McCoy urges us to reverse the district court’s order denying hi s motion to suppress because, according to McCoy, the district court’s reasona ble-suspicion determination

was erroneous. First, McCoy argues that the dash-cam video from Trooper Riches’s patrol car contradicts the district court’s finding th at Trooper Riches di d not prevent McCoy from moving into the right lane, thereby un dermining the district court’s reasonablesuspicion determination. We review a dist rict court’s factual findings on a motion to suppress for clear error. See United Stat es v. Cash, 733 F.3d 12 64, 1273 (10th Cir. 2013) (“A district court’s factual finding is clearly e rroneous when it is without factual support in the record or if, after revi ewing all the evidence, we are left with a definite and firm c onviction that a mistake has been made.”). Having reviewed the dash-cam video, which is c onsistent with Trooper Riches ’s testimony, we can easily conclude that the district court’s fact ual finding is not clearly erroneous. Second, McCoy argues that both the district court a nd Trooper Riches misinterpreted the left-lane statute, thereby rendering the district court’s reasonablesuspicion-finding objectivel y unreasonable. Importan tly, however, McCoy did not specifically raise a mistake-o f-law argument before the di strict court. See United5 States v. Burke, 633 F.3d 9 84, 987 (10th Cir. 2011) (holding that the defendant, who filed a timely motion to suppress eviden ce based on an alleged Fourth Amendment violation in the district court but failed pa rticularly to argue that the detective’s affidavit was inadequate to provide the magistrate judge with probable cause, waived his affidavit argument on appeal pursu ant to Fed. R. Crim. P. 12(e) 2 ). Although there is a narrow good-cause exception to waiver in this context, id. at 988, McCoy did not argue that he is enti tled to this exception. 3 We therefore deem his mistake-of-law argument waived on appeal. 4 See United States v. Hamilton, 587 F.3d 1199, 1216 (10th Cir. 2009) (refusing to apply the good-cause exception to waiver because the defendant made no showing of cause in his opening brief a nd declined to make such a showing in a reply brief ev en though the government af firmatively argued that the defendant had waived hi s suppression arguments).

2 The 2014 amendments to Fed. R. Crim. P. 12 (effective Dec. 1, 2014) relocated 12(e) to a new paragraph, 12(c)(3 ). This relocation did not substantively alter 12(e). See Fed. R. Crim. P. 12 a dvisory committee’s notes, 2014 amendments (“New paragraph 12(c)(3) retains the exis ting standard for untimely claims. The party seeking relief must show ‘good cau se’ for failure to raise a claim by the deadline, a flexible standard that requires consideratio n of all interests in the particular case.”). 3 Although the Government af firmatively asserted waiver both in its response brief and during oral argumen t, McCoy declined to expl ain his failure to raise a mistake-of-law argument below. 4 Moreover, McCoy’s mistake-of-law argum ent necessarily fail s to the extent it relies upon circuit precedent that is at odds with the S upreme Court’s recent decision in Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (holding that an officer’s reasonable mistake of law can give rise to the reasona ble suspicion necessary to justify a traffic stop under the Fourth Amendment).6 Accordingly, we affirm the district court’s order denying McCoy’s motion to
suppress. II. Final Judgment McCoy next argues that the district c ourt’s final judgment of conviction was tainted by an erroneous jury instruction. Specifically, McCoy argues that reversal is warranted because Instruction 26—the ai ding-and-abetting inst ruction—contained language similar to the aiding-and-abetti ng instruction that the Supreme Court rejected in Rosemond v. United States , 134 S. Ct. 1240, 1251– 52 (2014) (holding that the district court’s aiding-and-ab etting instruction for 18 U.S.C. § 924(c) (prohibiting the use or carry of a fir earm during any crime of violence or drug trafficking crime) was flawed because it failed to explai n that the defendant needed advance knowledge of a firearm’s presence). Where, as here, a challenged jury inst ruction was not objected to below, our review is ordinarily for plain error. See United States v. Sturm, 673 F.3d 1274, 1281 (10th Cir. 2012). Importantly, however, “ not every unpreserved claim of error is entitled to plain-error review .” United States v. Tea gue, 443 F.3d 1310, 1314 (10th Cir. 2006). For example, under the invited-e rror doctrine, “this C ourt will not engage in appellate review when a defendant ha s waived his right to challenge a jury instruction by affirmatively approving it at trial.” United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012).7 Here, the Government argues that Mc Coy waived his right to challenge Instruction 26 because he and the Governme nt jointly proposed this instruction. 5 McCoy does not contest this assertion. We have consistently applied the invitederror doctrine to find waiver when a defendant proffered th e jury instruction that he later attacks on appeal. See, e.g., United States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012) (exp laining that a defendant knowing ly and voluntarily waives the right to attack the sufficiency of a jury instruction when he proffers his own instruction and persuades the court to a dopt it); Sturm, 673 F.3d at 1281 (concluding that the defendant was barred from attacking the su fficiency of an instruction that he proffered himself); United States v. Vi sinaiz, 428 F.3d 1300, 1310–11 (10th Cir. 2005) (concluding that the defendant was barre d from attacking the sufficiency of an instruction that he approved after the district court adop ted his proffered modifications). We theref ore conclude that McCoy wa ived his jury-instruction argument under the invite d-error doctrine. Accordingly, we affirm the district court’s final judgme nt of conviction.

5 The district court made a few very mi nor alterations to th e parties’ proposed aiding-and-abetting instruction, but these changes did not impact the foreknowledge issue McCoy challenges on appeal and ther e is no indication in the record that McCoy objected to these smal l changes below.8 CONCLUSION For these reasons, we affirm the di strict court’s or der denying McCoy’s motion to suppress and the district c ourt’s final judgment of conviction.

Entered for the Court

David M. Ebel Circuit Judge