     Case: 11-30624     Document: 00512012494         Page: 1     Date Filed: 10/08/2012




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

                                                                            FILED
                                                                          October 8, 2012
                                     No. 11-30624
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EMANUEL CHARLES, III,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:08-CR-11-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Emanuel Charles, III, appeals his conviction and sentence for possessing
with intent to distribute 50 grams or more of cocaine base. See 21 U.S.C.
§ 841(a)(1), (b)(1)(A). He contends that the district court erred when it denied
his motion to suppress evidence that he maintains was obtained in violation of
his Fourth Amendment rights. Charles makes no argument regarding his
sentence for possessing with intent to distribute cocaine. We affirm Charles’s



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-30624

convictions but vacate his sentence on his cocaine base conviction and remand
for resentencing on that count.
      A district court’s findings on a motion to suppress are reviewed for clear
error, and the district court’s ultimate conclusions about whether the Fourth
Amendment was violated are reviewed de novo. United States v. Pack, 612 F.3d
341, 347 (5th Cir.), opinion modified on denial of reh’g, 622 F.3d 383 (5th Cir.
2010). The evidence is reviewed in the light most favorable to the prevailing
party—in this case, the Government. See id. The clear error standard is
particularly strong if denial of a suppression motion is based on in-court
testimony, because the judge had the opportunity to observe witness demeanor.
United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).
      Charles is incorrect in contending that the Fourth Amendment was
violated because law enforcement agents stopped him on a pretext while he was
under surveillance for narcotics trafficking. “[A]n ulterior motive [does not] strip
[law enforcement] agents of their legal justification” for a traffic stop. Whren v.
United States, 517 U.S. 806, 812 (1996). Thus, if a traffic stop is otherwise valid,
it does not matter that it may have been “a mere pretext for a narcotics search.”
Id. at 813 (internal quotation marks and citation omitted). A traffic stop is valid
if it is based on “probable cause to believe that a driver is violating
any . . . applicable traffic . . . regulation[ ].” Id. at 817 (internal quotation marks
and citation omitted).
      The district court resolved in the Government’s favor the conflict in the
evidence concerning Charles’s traffic violations. Because that resolution was
made after a hearing in which the district court heard testimony and observed
the witnesses, Charles’s burden to show clear error is particularly heavy, and
Charles fails to shoulder it. Although Charles denied, for example, running a
red light, law enforcement agents swore to the contrary. Charles offers no
persuasive reason why we should disturb the district court’s credibility
determination on this point. See Santiago, 410 F.3d at 197.

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                                  No. 11-30624

      Additionally, we reject the contention that the district court erred when
it found that the valid stop of Charles’s vehicle was followed by valid consent to
its search. A search based on valid consent satisfies the Fourth Amendment.
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In this court, Charles did
not address the district court’s determination concerning consent until he filed
his reply brief. By failing to raise the issue in his opening brief, Charles
abandoned it. See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir.
2005).
      Neither can Charles prevail on his challenge to the evidence seized from
his residence. The Fourth Amendment permits a search based on a warrant
issued on probable cause. U.S. CONST. AMEND. IV. The district court determined
that the narcotics found in the vehicle supplied the probable cause needed to
search Charles’s residence. Although evidence derived from the exploitation of
an illegal search or seizure must ordinarily be suppressed, see Brown v. Illinois,
422 U.S. 590, 602-03 (1975), the search of Charles’s vehicle was not illegal.
      The Fair Sentencing Act of 2010 (FSA) amended, inter alia,
§ 841(b)(1)(A)(iii) by increasing from 50 grams to 280 grams the amount of crack
cocaine a defendant must possess before he is subject to a 10-year mandatory
minimum sentence. See PUB. L. NO. 111-220, § 2(a)(2). In United States v.
Dorsey, 132 S. Ct. 2321, 2329-35 (2012), the Court held that the penalties
prescribed by the FSA apply to sentences imposed after the FSA’s enactment in
August 2010 for cocaine base offenses that occurred before the enactment.
Charles committed his crack cocaine offense in April 2007, and he was sentenced
in June 2011. Thus, Dorsey requires that Charles be sentenced under the FSA.
See 132 S. Ct. at 2329-35.
      Charles’s convictions are AFFIRMED.           Charles’s sentence on his
conviction for possessing with intent to distribute 50 grams or more of cocaine
base is VACATED, and this case is REMANDED for resentencing on the crack
cocaine conviction consistent with Dorsey.

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