United States v. Salazar, 062117 FED5, 16-41194

Docket Nº:16-41194
Opinion Judge:STEPHEN A.HIGGINSON, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee v. EUSEBIO SALAZAR, JR., Defendant-Appellant
Judge Panel:Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
Case Date:June 21, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit



EUSEBIO SALAZAR, JR., Defendant-Appellant

No. 16-41194

United States Court of Appeals, Fifth Circuit

June 21, 2017

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:15-CR-1139-2

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A.HIGGINSON, Circuit Judge [*]

Following a bench trial, Eusebio Salazar, Jr., was convicted of conspiracy to transport illegal aliens within the United States and two counts of transporting illegal aliens, in violation of 8 U.S.C. § 1324(a), and sentenced to 30 months of imprisonment on each count, with the sentences running concurrently. On appeal, he argues that the district court erred by denying his motion to suppress the evidence obtained following a stop by Border Patrol agents because the agents lacked reasonable suspicion to stop the vehicle he was driving. In lieu of filing a brief, the Government filed a motion for summary affirmance or, in the alternative, a motion for an extension of time to file its brief.

When reviewing a denial of a motion to suppress evidence, this court reviews factual findings for clear error and conclusions of law de novo. United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). "[A] district court's determination that a seizure has or has not occurred is a finding of fact subject to reversal only for clear error." United States v. Valdiosera-Godinez, 932 F.2d 1093, 1098 n.1 (5th Cir. 1991). Summary affirmance is proper where, among other instances, "the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case."

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The Government claims that the issues in this case are foreclosed by "well-settled authority, " including, inter alia, Terry v. Ohio, 392 U.S. 1 (1968), and United States v. Mask, 330 F.3d 330 (5th Cir. 2003). However, summary affirmance is not proper in this case because neither Terry nor Mask addresses the exact issues raised by Salazar. See United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010); see also Terry, 392 U.S. at 4-8; Mask, 330 F.3d at 332-34.

Nevertheless, Salazar fails to show that the district court's findings on when the seizure occurred were clearly erroneous. See Valdiosera-Godinez, 932 F.2d at 1098 n.1. The district...

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