     Case: 11-50798     Document: 00511901435         Page: 1     Date Filed: 06/27/2012




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

                                                                            FILED
                                                                           June 27, 2012
                                      No. 11-50781
                                    c/w No. 11-50798                       Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAMON JAVIER CASTRO,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:11-CR-56-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Ramon Javier Castro was convicted of possession with intent to distribute
at least five kilograms of cocaine and sentenced to 120 months of imprisonment
and five years of supervised release. He appeals the denial of his motion to
suppress evidence obtained from a search of his vehicle following a traffic stop.
        Castro contends that the traffic stop was unconstitutional because the
officer did not have an objectively reasonable basis for believing that Castro had


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50781 c/w No. 11-50798

committed a traffic violation by traveling in the left lane of the highway without
passing. He argues that he did not commit a traffic violation because he lacked
notice of the left-lane driving restriction. This specific argument regarding the
legality of the traffic stop is raised for the first time on appeal. “[F]ailure 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. Pope, 467 F.3d
912, 918-19 (5th Cir. 2006) (emphasis in original). Therefore, Castro’s argument
on appeal is waived. We have nonetheless reviewed Castro’s argument for plain
error “for good measure.” United States v. Scroggins, 599 F.3d 433, 448 (5th Cir.
2010).
      To show plain error, Castro must show that the error was clear or obvious
and affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but only if it “‘seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’” Id. (alteration in original) (quoting United States v.
Olano, 507 U.S. 725, 736 (1993)).
      A warrantless but limited search and seizure of a vehicle is permissible
under the Fourth Amendment “where there is a reasonable and articulable
suspicion that a person has committed or is about to commit a crime.” United
States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). The legality of such a search
or seizure is examined under the two-pronged analysis set forth in Terry v. Ohio,
392 U .S. 1 (1968), to determine “1) whether the officer’s action was justified at
its inception; and 2) whether it was reasonably related in scope to the
circumstances that justified the interference in the first place.” Id. at 240.
      “For a traffic stop to be justified at its inception, an officer must have an
objectively reasonable suspicion that some sort of illegal activity, such as a
traffic violation, occurred, or is about to occur, before stopping the vehicle.”
United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). It would not
have been clearly erroneous for the district court to have found that Castro

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                         No. 11-50781 c/w No. 11-50798

traveled by a sign notifying drivers of the left-lane travel restriction at highway
mile marker 321. See United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000).
Since Castro traveled by a sign notifying drivers of the left-lane travel
restriction, the arresting officer had reasonable suspicion to stop Castro for
traveling in the left lane without passing. See Green v. State, 93 S.W.3d 541, 546
(Tex. App. 2002) (citing TEX. TRANSP. CODE ANN. §§ 544.004, 544.011).
      Castro nonetheless argues that driving in the left lane without passing is
not a traffic violation if there is no sign prohibiting the conduct at the time and
place of the alleged violation. The sign that Castro traveled by was 24 miles
from the location of the alleged violation. Castro has failed to carry his burden
on plain error review of demonstrating that the Texas Transportation Code
requires the traffic control device to be in direct proximity to the location of the
alleged violation. Cf. TEX. TRANSP. CODE ANN. § 544.004(b); see United States v.
Sandlin, 589 F.3d 749, 757 (5th Cir. 2009). Therefore, he cannot show that the
district court erred, much less plainly erred, by denying his motion to suppress
on the ground that the officer had reasonable suspicion to stop him for
committing a traffic violation. In light of this conclusion, we need not reach
Castro’s argument that his consent to the search of the vehicle was involuntary
because the traffic stop was unconstitutional.
      The judgment of the district court is AFFIRMED.




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