                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS        February 11, 2004

                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                            No. 03-20503
                          Summary Calendar



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

                                versus

CHARLY DAHER,

          Defendant-Appellant.



          Appeals from the United States District Court
                for the Southern District of Texas
                      USDC No. H-02-CR-314-1


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Charly Daher appeals his conviction for possession with intent

to distribute 5 grams or more of cocaine base within 1,000 feet of

a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii),

and 860(a).    Daher argues that the district court clearly erred in

denying his motion to suppress the evidence seized at his home

because the police did not knock and announce their presence before

forcibly entering in violation of 18 U.S.C. § 3109 and the Fourth

     *
      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this opinion should not be published and is not precedent except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.
Amendment.

     In reviewing the denial of a motion to suppress made after a

pretrial hearing, we review the district court’s factual findings,

including its credibility choices, for clear error, and we view the

evidence in the light most favorable to the prevailing party.1               “A

finding of fact is clearly erroneous ‘when although there is

evidence to support it, the reviewing court on the entire evidence

is left with a firm and definite conviction that a mistake has been

committed.’”2      When findings rest on the credibility of witnesses,

“even    greater    deference   to   the     trial    court’s    findings”   is

warranted.3     If the district court’s account of the evidence is

plausible in light of the record, we may not reverse it.4

     Daher      argues   that    the       district    court’s     credibility

determination that the police knocked and announced before entering

his home was clearly erroneous.               He claims that one of the

officers, Officer Pudafin, admitted on cross-examination that there

was no knock and announcement.         The single question and answer on




     1
      See United States v. Solis, 299 F.3d 420, 435 (5th Cir.
2002); United States v. Cantu, 230 F.3d 148, 150 (5th Cir. 2000).
     2
      In re Missionary Baptist Foundation of America, 712 F.2d 206,
209 (5th Cir. 1983) (citing United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948)).
     3
      Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575
(1985).
     4
        Id. at 573-74.

                                       2
which Daher relies, however, were at best ambiguous.5                   Officer

Pudafin and two other officers affirmatively and clearly testified

that they knocked and yelled and then waited 15 to 20 seconds

before entering Daher’s home.       The district court concluded based

on   the   testimony   and   evidence       that   the   officers   knocked   and

announced before entering. The court’s account of the evidence was

plausible, and we will not second-guess the court’s credibility

determinations.6

      In his brief, Daher also requested that we hold this appeal in

abeyance until the Supreme Court decides United States v. Banks.7

The Supreme Court recently issued its decision, concluding that

police officers did not act unreasonably in waiting only 15 to 20

seconds after a single knock and announcement before forcibly

entering a defendant’s home.8      Daher has not argued on appeal, and

did not argue before the district court, that the police waited an

unreasonably brief period of time before entering his home, and

Banks is therefore inapposite.



      5
      On cross-examination, Officer Pudafin was asked whether
“anywhere in that report that I just handed back to you is it
indicated who knocked and announced or, in fact, did anyone knock
and announce that morning?” He responded “no.”
      6
      Anderson, 470 U.S. at 573-74; United States v. Garza, 118
F.3d 278, 283 (5th Cir. 1997).
      7
      United States v. Banks, 282 F.3d 699 (9th Cir. 2002), cert.
granted, 123 S.Ct. 1252 (2003).
      8
       United States v. Banks, 124 S.Ct. 521 (2003).

                                        3
     Because we find that the district court did not clearly err in

refusing to suppress the evidence seized, we affirm the district

court’s judgment.

     AFFIRMED.




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