     Case: 14-40868      Document: 00513120379         Page: 1    Date Filed: 07/17/2015




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

                                    No. 14-40868
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             July 17, 2015
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

MOHAMED LAYE DIOUBATE,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 1:13-CR-40


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       A jury convicted Defendant-Appellant Mohamed Laye Dioubate of
possession of 15 or more unauthorized access devices in violation of 18 U.S.C.
§ 1029(a)(3). The district court sentenced him to 33 months of imprisonment
and a three-year term of supervised release. Dioubate challenges the traffic
stop and subsequent search of his vehicle, contending that officers illegally
detained him while waiting for the K-9 unit to arrive on the scene. He argues


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40868

that the government failed to establish that the dog was qualified to conduct a
sniff search of the exterior of the vehicle or that the dog’s false alert provided
probable cause for such a search. Dioubate also contends that the district court
erred by permitting a Secret Service agent to testify as an expert in the use
and interpretation of a magnetic card reader.
      In reviewing the denial of a motion to suppress, we address the district
court’s conclusions of law de novo and its findings of facts, including credibility
determinations, for clear error, viewing the evidence in the light most favorable
to the government. United States v. Montes, 602 F.3d 381, 384-85 (5th Cir.
2010). We have held, however, that the “failure to raise specific issues or
arguments in pre-trial suppression proceedings operates as a waiver of those
issues or arguments for appeal.” United States v. Scroggins, 599 F.3d 433, 448
(5th Cir. 2010) (internal quotation marks and citation omitted).
      Dioubate did not raise the challenges to the extended traffic stop and K-
9 sniff search in the district court, so he has waived those issues on appeal. See
id. For “good measure,” however, we shall consider them issues under the
plain error standard of review. See id.; see also United States v. Baker, 538
F.3d 324, 328-29 n.1 (5th Cir. 2008).
      The arresting officer testified that (1) neither Dioubate nor his passenger
could provide the address of their ultimate destination, (2) the passenger
refused to make eye contact with the officer, was breathing heavily, and could
not provide identification, and (3) Dioubate exhibited signs of anxiety during
questioning by the officer.    As the totality of the circumstances provided
reasonable suspicion that Dioubate might have been involved in criminal
activity, the officers did not violate his Fourth Amendment rights by detaining
him until the K-9 unit arrived on the scene. See United States v. Arvizu, 534
U.S. 266, 274 (2002); United States v Pack, 612 F.3d 341, 345-46, 361 (5th Cir.



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                                  No. 14-40868

2010). Dioubate has not shown any error, plain or otherwise, related to the
extended traffic stop and the delay in waiting for the K-9 unit to arrive. See
Pack, 612 F.3d at 361-62. Dioubate’s challenge to the qualifications of the K-9
was a factual issue that could have been resolved if he had raised it properly
in the district court, so he cannot succeed on plain error review. See United
States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001). Even assuming we were at
liberty to review the fact issue for plain error, Dioubate has neither
demonstrated that the purported effort is plain nor established why the error
warrants discretionary relief under the fourth prong of plain error review. See
United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) (holding that error “does
not inevitably affect the fairness, integrity, or public reputation of judicial
process and proceedings”); see also United States v. Chavez-Trejo, 533 Fed.
Appx. 382, 385 (5th Cir. 2013) (unpublished) (refusing to correct plain error
when the complaining party made no showing as to prong four).
      We review a trial court’s evidentiary ruling for abuse of discretion,
subject to harmless error review. United States v. Ebron, 683 F.3d 105, 133
(5th Cir. 2012). The Secret Service agent’s opinion regarding the reliability of
the magnetic card reader was based on personal experience and not on
scientific or technical knowledge. The district court did not abuse its discretion
in allowing the agent to testify as a lay witness. See id.; FED. R. EVID. 701.
Moreover, any error was harmless because there was not a reasonable
probability that the conviction turned on the agent’s testimony, given the other
strong evidence of Dioubate’s guilt. See United States v. Mendoza-Medina, 346
F.3d 121, 127 (5th Cir. 2003).
      The judgment of the district court is AFFIRMED.




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