* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MONNIE LASHAWN ANDERSON,

Defendant - Appellant. No. 97-4177 (D. Ct. No. 96-CR-270-J) (D. Utah)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO , and TACHA , Circuit Judges.

Defendant-Appellant Monnie Lashawn Anderson was fo und guilty on two counts of possession of a controlled substance withintent to distribute and was sentenced to 60 months imprisonment, followed by a three-year period of supervised release. On appeal, defendant challenge s the validity of her conviction, asserting that the district court impro perly denied her motion to suppress the evidence used to convict her. Defendant also challenges her sentence, claiming that the district court erred wh en it failed to depart downward- 2 -

from the mandatory minimum sentence pursuant to the “safety valve” provision of 18 U.S.C. § 3553(f) and United States Sentencing Gu idelines (“U.S.S.G.”) § 5C1.2. We exercise jurisdiction pursuant to 18 U .S.C. § 3742(a) and 28 U.S.C. § 1291. We affirm. On the morning of November 10, 1996, Utah Highway P atrolman Lance Bushnell monitored Interstate 70 in a marked patrol car. He observed a late-model white Chevrolet Suburban slow from 70 m. p.h. to 55 m.p.h. as it approached his patrol car, despite the posted speed limit of 75 m.p.h. After observing the vehicle’s deceleration, Officer Bushn ell crossed the center median and drove at speeds approaching 100 m.p.h. in pursu it of the Suburban. As the patrol car approached the Suburban, Officer Bushnel l observed the vehicle cross over into the emergency lane by a few inches on two occasions. While pursued, the Suburban accelerated to 70 m.p.h. and again red uced its speed to 55 m.p.h. Officer Bushnell believed these acts indicated an i mpaired or fatigued driver. He pulled alongside the Suburban and noticed through atinted window that the driver had a “withdrawn look.” He then stopped the vehicl e to investigate his belief that the driver was either falling asleep or impaired. As Officer Bushnell approached the car on foot, he noticed an “overpowering” odor of marijuana. During these events, defendant sat in the front passenger seat o f the Suburban. Backup officers soon arrived and administered field sobriety tests to the driver of the Suburban,- 3 -

Rodrell Castine. They found Mr. Castine to be driv ing while under the influence of drugs. The officers subsequently searched the S uburban for narcotics. This search yielded approximately forty pounds of mariju ana and two kilograms of cocaine. The officers arrested the defendant along with Mr. Castine, and she was charged with two counts of possession of a controll ed substance with intent to distribute in violation of 18 U.S.C. § 2 and 21 U.S .C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C). After her arrest, Ms. Anderson filed a motion to suppress the drugs recovered during the search of the Suburban, allegi ng that the officers seized the evidence as the result of a warrantless traffic sto p in violation of the Fourth Amendment. The district court held a hearing on th e motion to suppress and denied it, holding that Officer Bushnell’s observat ion of Mr. Castine violating the Utah traffic code justified the stop under the Supr eme Court’s holding in Whren v. United States , 517 U.S. 806, 819 (1996). On August 12 and 14, 1 997, a jury trial was held. The defendant was convicted on bot h counts. The trial court imposed a sentence of 60 months imprisonment, departing downward three months from the statutory minimum sentence, based o n grounds other than the safety valve provision. The judge also imposed a t hree-year period of supervised release to follow Ms. Anderson’s incarceration. Th is appeal followed. Ms. Anderson argues that the district court erred i n denying her motion to- 4 -

suppress and that she is therefore entitled to have her case remanded. In particular, she claims that the search of the Subur ban violated the Fourth Amendment’s prohibition against unreasonable search es because Officer Bushnell did not have a justifiable basis for initially stop ping the vehicle. We review determinations of reasonable suspicion de novo. Se e United States v. Edwards , 103 F.3d 90, 92 (10th Cir. 1996). We must considerthe totality of the circumstances in which the officer acted and view t he evidence in the light most favorable to the government. See United States v. Hunnicutt , 135 F.3d 1345, 1348 (10th Cir. 1998). “[A] traffic stop is valid under the Fourth Amendme nt if the stop is based on an observed traffic violation or if the police o fficer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) (en banc); accordWhren , 517 U.S. at 819. Therefore, if Officer Bushnell had a reasonable suspicion that the driver of the Suburban violated Title 41 of the Utah Code by not keeping his vehicle within a single lane, see Utah Code Ann. § 41-6-61(1), or by operating a vehicle while under the influence of drugs or alcohol, see Utah Code Ann. § 41-6-44(2)(a), the stop did not offend defendant’s Fourth Amendment rights. Mr. Castine, the driver of the S uburban, raised this identical issue in his appeal. See United States v. Castine , 156 F.3d 1244, 1998 WL- 5 -

516842 (10th Cir. Aug. 17, 1998) (unpublished opini on). The Castine panel held that the testimony of Officer Bushnell was “suffici ent for us to conclude that the totality of the circumstances supported the officer ’s reasonable suspicion that a violation of the law was occurring.” Id. at *2. We agree with the decision in Castine . The Suburban’s erratic speed changes, swerving o utside the lane, and the driver’s “withdrawn” look, combined with the Of ficer Bushnell’s knowledge and experience with drivers on that section of the road during that time of day, provide sufficient evidence to support a finding of reasonable suspicion that a traffic violation was occurring. We thus conclude that the district court did not err in denying Ms. Anderson’s motion to suppress. Ms. Anderson also appeals the sentence imposed by the district court. She claims that the district court erred when it failed to reduce her sentence under the safety valve provision of 18 U.S.C. § 3553(f) and U .S.S.G. § 5C1.2. We disagree. Although we review the district court’s interpretation and application of the Sentencing Guidelines de novo, see United States v. Hershberger , 962 F.2d 1548, 1550 (10th Cir. 1992), we review the districtcourt’s factual findings underlying a Sentencing Guideline departure for cle ar error, see United States v. Flinn , 987 F.2d 1497, 1500 (10th Cir. 1993). U.S.S.G. § 5C1.2 states that the district court sha ll, in the case of an offense under 21 U.S.C. § 841, impose a sentence wi thout regard to any minimum1 Those criteria are:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553(f)(1)-(5).

- 6 - statutory sentence, provided the defendant meets th e five criteria of 18 U.S.C. § 3553(f). 1 This court has held that the defendant has the bu rden of proving by a preponderance of the evidence that he or she is ent itled to a safety valve reduction. See United States v. Verners , 103 F.3d 108, 110 (10th Cir. 1996). Contrary to Ms. Anderson’s claim that the court fai led to make an independent finding as to her eligibility for the s afety valve reduction, the court did make such a finding. After hearing arguments f rom both defense counsel and- 7 -

the prosecution regarding the applicability of the safety valve provision, the district court explained that it agreed with the ju ry, which found that Ms. Anderson had knowingly possessed illegal drugs. Sp ecifically, the court stated: “I have no reason to quarrel with the jury’s determ ination. I believe that they made the correct determination, and I know of no re ason why I should, in any way, in this instance where I have an independent o bligation, find differently.” Sentencing Hr’g Tr. at 22. Ms. Anderson continued to assert that she did not know the drugs were in the Suburban. By finding Ms . Anderson knew the drugs were in the truck, the district court had to conclu de that she had not provided the government with all the information she had concern ing the offense, as required by 18 U.S.C. § 3553(f)(5). Ms. Anderson, therefore , failed to demonstrate her entitlement to a sentence reduction under the safety valve provision. Even assuming, as the defendant urges, that the districtcourt, for the purpose of sentencing, has the discretion to make findings dif ferent than those made by the jury, see United States v. Sherpa , 110 F.3d 656, 662-63 (9th Cir. 1997), nothing prevents the district court from reaching the same conclusions as the jury. Additionally, upon review of the record, we find no clear error in the district court’s finding that the defendant has fai led to satisfy her burden of proof in this case. A finding is clearly erroneous only when it is “without factual support in the record, or if after reviewing the ev idence[,] we are left with the- 8 -

definite and firm conviction that a mistake has bee n made.” United States v. Beaulieu , 893 F.2d 1177, 1182 (10th Cir. 1990). The recordin this case contains facts that adequately support the district court’s finding that Ms. Anderson did not qualify for the safety valve reduction. The record reveals that Ms. Anderson had frequently used marijuana and was familiar with the smell of raw marijuana. Despite her knowledge and experience with marijuana , she consistently denied knowing anything about the marijuana that was conce aled in the Suburban, notwithstanding the testimony of the police officer s that the odor of raw marijuana emanating from the Suburban was “very str ong” and “overpowering.” Ms. Anderson’s denials under such circumstances ind icate that the district court did not clearly err in finding she did not satisfy 18 U.S.C. § 3553(f)(5) and U.S.S.G. § 5C1.2. For the reasons discussed above, we AFFIRM defendant’s conviction and

sentence. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge