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United States v. Vance

filed: August 7, 1995.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOHNNY MATEO VANCE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Guam. D.C. No. CR-93-00114-JSU. John S. Unpingco, District Judge, Presiding.

Before: Stephen Reinhardt, David R. Thompson, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld; Concurrence by Judge Reinhardt.

Author: Kleinfeld

KLEINFELD, Circuit Judge:

The most substantial issue in this case is how much proof of acceptance of responsibility a district Judge can require as a condition of granting the two level sentencing guidelines adjustment available under Guidelines section 3E1.1. Other sentencing issues and a border search issue are also raised.

I. FACTS

Vance appeals his conviction under 21 U.S.C. § 952 for importing methamphetamine into the United States. He argues that evidence gained during the pat-down search conducted by customs officers should have been suppressed, that he should have been awarded a three-point downward adjustment for a timely acceptance of responsibility, and that the district court erroneously denied him the right to allocution at sentencing. We affirm in part and reverse and remand in part.

On October 30, 1993, Vance arrived in Guam on a flight from Honolulu, Hawaii. A customs officer, who met the plane, testified that Vance looked dazed and glassy eyed, and seemed to have difficulty understanding and responding to his questions. He thought that Vance might be on some kind of medication. Also, Vance's Hawaii trip was suspiciously short - an $800 airplane ticket for less than 24 hours on the ground in Hawaii, for what Vance claimed was a vacation. The customs officer asked Vance if he worked for an airline, which would take the expense out of the short vacation trip, but Vance replied that he did not. The customs officer therefore referred Vance for secondary inspection.

The secondary inspection customs officer testified similarly about Vance's glassy eyed appearance, disorientation, and trouble answering questions. He searched Vance's luggage and found his airline tickets, which showed that Vance had been in Hawaii for only one day. The customs officer asked Vance "How was your trip," and Vance replied "three days." The customs officer thought "that didn't seem like a vacation," so he asked Vance if he could pat him down, and Vance said "sure."

During the pat-down search, the customs officer noticed that Vance was wearing two sets of underwear. The officer testified that it was unusual to wear extra underwear "in this climate." The customs officer also discovered that Vance had a suspicious bulge in his crotch area, so he told Vance to drop his trousers and pull down his underwear. Vance complied and two packets of methamphetamine fell out:

Officer:

I asked him to just face the wall, put his hands up, pat-down, spread his legs, and then I start from the head, and working my way down to his waist area.

Attorney:

What did you find?

Officer:

At this time he was up against the wall, facing up against the wall, his legs was about four feet back from the wall, spread, and I was searching within his waist area. I pulled back the waist of his pants, I noticed he was wearing two underwears, so then I just kept that in mind, and since the individual is only wearing shorts, I couldn't do much more, so I just searched within the crotch area, that's when I noticed that he had a bulge down there.

Attorney:

And did you investigate what the bulge was?

Officer:

I did, I did so.

Attorney:

And what was it?

Officer:

Then I had the individual turn around and face me, I asked him to drop his pants, so he did so, and then I asked him to drop his underwear, where at that time those two packets of wrapped items fell, fell to the ground.

Attorney:

In your experience, is it unusual for people in the climate of Hawaii to wear ...


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