     Case: 15-50675      Document: 00513452190         Page: 1    Date Filed: 04/05/2016




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

                                    No. 15-50675
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           April 5, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

GERARDO MONTES-NUNEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:15-CR-14


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Following a bench trial, Gerardo Montes-Nunez was convicted of having
been unlawfully present in the United States after removal, and he was
sentenced to 10 months in prison. On appeal, Montes-Nunez, who was arrested
following a traffic stop, claims that the evidence obtained by Border Patrol
agents—including his identity-related statements, fingerprints, photograph,
and A-file—should have been suppressed as fruits of what the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-50675    Document: 00513452190    Page: 2   Date Filed: 04/05/2016


                                No. 15-50675

determined was an illegal seizure. Thus, he contends that the district court
erred in denying his pretrial motion to suppress.
      As an initial matter, Montes-Nunez waived any challenge regarding his
A-file through his counsel’s statement at the suppression hearing that
Montes-Nunez was not “seeking to suppress his A file.” Thus, his claim on this
point is “entirely unreviewable.” United States v. Musquiz, 45 F.3d 927, 931
(5th Cir. 1995).
      The Government has moved for summary affirmance on the ground that
the sole issue raised by Montes-Nunez is foreclosed. This court has held that
even if there was a Fourth Amendment violation, evidence of identity is not
suppressible. See United States v. Hernandez-Mandujano, 721 F.3d 345, 351
(5th Cir. 2013); United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir.
1999). Accordingly, as Montes-Nunez concedes, his argument is foreclosed.
See Roque-Villanueva, 175 F.3d at 346.      Further, although Montes-Nunez
argues that Roque-Villanueva was wrongly decided, one panel of this court may
not overrule a prior decision of another panel in the absence of an intervening
contrary or superseding decision by this court sitting en banc or by the United
States Supreme Court. United States v. Traxler, 764 F.3d 486, 489 (5th Cir.
2014).
      The motion for summary affirmance is GRANTED.
      AFFIRMED.




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