Opinion
Argued September 17, 2004.
Submitted June 27, 2005.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
William C. Bottger, Jr., Esq., Ronald L. Cheng, Esq., Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
Michael J. Raphael, Esq., Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee and Plaintiff-Appellant.
Jonathan D. Libby, Deputy FPD, Federal Public Defender's Office, Los Angeles, CA, for Defendant-Appellant and Defendant-Appellee.
Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. CR-03-00260-GAF-01, CR-03-00260-GAF.
Before: T.G. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Henry Sainez appeals the district court's denial of his motion to suppress a gun obtained from a search of his car. The Government cross-appeals the district court's decision to make two downward departures. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the district court's denial of the motion to suppress and therefore affirm the conviction. We remand for re-sentencing, as necessary, in light of United States v. Booker and United States v. Ameline.
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
409 F.3d 1073 (9th Cir.2005) (en banc).
When Sainez finally submitted to authorities, reasonable suspicion existed for the stop. Sainez's custodial arrest was proper under California and federal law. Sainez conceded that if the arrest
See United States v. Smith, 217 F.3d 746, 750 (9th Cir.2000) (explaining that seizure occurs only when "the suspect is physically subdued or submits to the assertion of authority").
See CAL. PENAL. CODE § 853.6(I) (2004) (providing for custodial arrest if "[t]he person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others" or if "[t]here was a reasonable likelihood that the offense or offenses would continue or resume, or that the safety of persons or property would be imminently endangered by release of the person arrested"); see also United States v. Mota, 982 F.2d 1384, 1387 (9th Cir.1993) (describing interaction of state requirements with federal law).
Page 748.
was proper, the impounding of his car, and the search, were proper as well. Accordingly, we affirm the district court's denial of Sainez's motion to suppress.
We note that the doctrine of inevitable discovery provides an alternative ground for the admission of the gun. If the deputies had locked or moved the car, which they would have had to in order to secure it or park it legally, they inevitably would have discovered the gun, the butt of which was in plain view. See United States v. Wiga, 662 F.2d 1325, 1333 n. 9 (9th Cir.1981).
As to the Government's cross-appeal, we review the sentencing issues for plain error. We cannot determine from the record whether the district court would have imposed a materially different sentence if it had known that the Guidelines were advisory rather than mandatory, as the Supreme Court held in Booker. Therefore, under Ameline, we remand for the limited purpose of making that determination. In fulfilling this mandate, the district court may hold such hearings and enter such orders as it determines to be necessary, including, without limitation, modifying or vacating the sentence.
See Ameline, 409 F.3d at 1078.
Booker, 125 S.Ct. at 764-65.
See Ameline, 409 F.3d at 1079.
Conviction AFFIRMED; Sentence REMANDED.