                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                February 15, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-50217
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

ARMANDO ORONA,

                                      Defendant-Appellant.


                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                        USDC No. 4:04-CR-198-ALL
                          --------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

     Armando Orona appeals his conviction and sentence for

transporting child pornography by computer, receipt of child

pornography by computer, and possessing a hard drive containing

child pornography in violation of 18 U.S.C. §§ 2252(a)(1) and

(a)(4)(B).     Orona argues that the district court erred in denying

his motion to suppress the evidence, the computer containing the

images of child pornography, seized from his automobile.          When

reviewing the denial of a motion to suppress, this 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this opinion should not be published and is not precedent except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.
                             No. 05-50217
                                  -2-

generally reviews factual findings for clear error and the trial

court’s conclusions as to the constitutionality of law

enforcement action and the sufficiency of a warrant de novo.

United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999).

     In this case, it is not necessary to address the arguments

regarding the validity of the warrant or the good-faith exception

because a search may be upheld on the ground that a search

without a warrant would have been supported by probable cause.

United States v. Clark, 559 F.2d 420, 426 (5th Cir. 1977);

Coolidge v. New Hampshire, 403 U.S. 443 (1971).     “The automobile

exception to the Fourth Amendment’s warrant requirement permits

authorities to search a vehicle when they have probable cause to

believe it contains contraband.”    United States v. Saucedo-Munoz,

307 F.3d 344, 351 (5th Cir. 2002) (quoting Maryland v. Dyson,

527 U.S. 465, 466-67 (1999)).    Although Orona does not make the

specific argument, exigent circumstances are also required to

justify a warrantless search of a vehicle when the vehicle is

parked in the driveway of a residence.      See Coolidge, 403 U.S. at

461-62; United States v. Reed, 26 F.3d 523, 530 (5th Cir. 1994).

     In this case, Orona was not in custody at the time of the

search of the Mazda.   As found by the district court, the engine

of the Mazda was running at the time of the search.     Orona does

not dispute that he had been seen by the deputies loading the

computer into the vehicle.    Orona cites Chambers v. Maroney, 399

U.S. 42 (1970), for the proposition that the agents could have
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                                  -3-

either searched the car immediately or sought a warrant, but not

both, but “[t]here is no constitutional difference between

‘seizing and holding a car before presenting the probable cause

to a magistrate and on the other hand carrying out an immediate

search without a warrant.’”     United States v. Sinisterra, 77 F.3d

101, 104 (5th Cir. 1996)(quoting Chambers, 399 U.S. at 52).      The

totality of the circumstances justified the warrantless search of

the vehicle.     See Sinisterra, 77 F.3d at 104-05.   The denial of

the motion to suppress was not error.

     Orona argues that the district court violated the Sixth

Amendment by increasing his offense level for obstruction of

justice because the jury made no finding on the issue in

violation of United States v. Booker, 125 S. Ct. 738 (2005).

This argument is based on the implicit assertion that he was

sentenced under a mandatory guidelines scheme.    Orona was

sentenced after Booker was decided, and the record shows that the

district court did not treat the guidelines as mandatory.     Orona

has not shown that the sentence imposed was not reasonable.      See

United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.

denied, 126 S. Ct. 43 (2005).

     AFFIRMED.
