     Case: 16-41194      Document: 00514042186         Page: 1    Date Filed: 06/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 16-41194
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                           June 21, 2017
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

EUSEBIO SALAZAR, JR.,

                                                 Defendant-Appellant


                   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


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 16-41194

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 court determined that Salazar was not seized
until “after the BMW engaged in erratic and evasive driving maneuvers, after
[the] unlawful alien passengers were witnessed running from their vehicle,
and after the BMW . . . rammed the Border Patrol unit.” See California v.
Hodari D., 499 U.S. 621, 629 (1991); United States v. Holloway, 962 F.2d 451,



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                                 No. 16-41194

456-57 (5th Cir. 1992). However, Salazar failed to brief the timing issue, so he
has waived any challenge to the district court’s findings. See United States v.
Charles, 469 F.3d 402, 408 (5th Cir. 2006). Therefore, he has not shown that
the district court’s timing decision was clearly erroneous. See Valdiosera-
Godinez, 932 F.2d at 1098 n.1. And the Border Patrol agents’ receipt of an
anonymous tip concerning Salazar’s vehicle and observation of Salazar driving
erratically and evasively, stopping to allow individuals to run from his vehicle,
and ramming a Border Patrol unit sufficiently support the Border Patrol
agents’ seizure here.
      Accordingly, the Government’s motions are DENIED, and the district
court’s decision is AFFIRMED.




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