     Case: 10-10025 Document: 00511301715 Page: 1 Date Filed: 11/22/2010




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

                                                 FILED
                                                                         November 22, 2010
                                     No. 10-10025
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

SAUL RONQUILLO,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 5:09-CR-44-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Saul Ronquillo was convicted by a jury of being a felon in possession of a
firearm. He was sentenced to 120 months of imprisonment and to a three-year
term of supervised release. Ronquillo contends that the district court abused its
discretion in allowing prior-crime evidence under Fed. R. Evid. 404(b) because
the evidence was seized as the result of an illegal search and seizure, as
evidenced by the state prosecutor’s nolle prosequi order.                The Government
contends that the district court did not abuse its discretion in admitting the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10025 Document: 00511301715 Page: 2 Date Filed: 11/22/2010

                                  No. 10-10025

evidence because testimony at trial demonstrated that no Fourth Amendment
violation occurred in the seizing of the evidence. The Government has also filed
a motion to supplement the record on appeal.
      This court reviews a district court’s admission of 404(b) evidence under a
heightened abuse of discretion standard, subject to harmless error analysis.
United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). The 404(b) evidence
Ronquillo challenges is evidence seized as a result of his vehicle being
impounded and searched on August 29, 2008, in Hobbs, New Mexico. Testimony
from the arresting officer revealed that, per department policy, Ronquillo’s
vehicle was impounded due to plates expired more than 31 days. Also, per
department policy, an inventory search was conducted and resulted in a Crown
Royal bag containing a stolen firearm being discovered, evidence very similar to
that discovered in the instant case. In light of the unchallenged testimony of the
arresting officer presented to the district court, the inventory search did not
violate the Fourth Amendment. See United States v. Lage, 183 F.3d 374, 381
(5th Cir. 1999). The nolle prosequi order from the state prosecutor does not
rebut the officer’s testimony because the order does not indicate whether there
was a constitutional violation. See United States v. Eastland, 989 F.2d 760, 765-
66 (5th Cir. 1993). Accordingly, the district court did not abuse its discretion in
admitting the 404(b) evidence.
      Ronquillo further argues that the district court erred in denying his
motion to dismiss the indictment because it failed to allege that the firearm had
a substantial effect on interstate commerce; failed to allege that he knew he was
a convicted felon; and failed to allege that he knew the gun had traveled in
interstate commerce. Ronquillo acknowledges that his arguments are foreclosed
by this court’s precedent but raises the arguments to preserve them for further
review. The arguments are rejected, as Ronquillo expected,
      The judgment of the district court is AFFIRMED. The Government’s
motion to supplement the record on appeal is DENIED.

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