     Case: 10-60709        Document: 00511523869         Page: 1     Date Filed: 06/28/2011




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

                                                                                FILED
                                                                              June 28, 2011

                                          No. 10-60709                        Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellant
v.

DWAYNE SMITH, also known as Turbo; DAMEIAN DARNELL SUBER,

                                                      Defendants - Appellees



                       Appeal from the United States District Court
                         for the Northern District of Mississippi
                                 USDC No. 4:09-CR-147-1


Before JOLLY and HAYNES, Circuit Judges, and RODRIGUEZ,* District Judge.
PER CURIAM:**
        In this interlocutory appeal brought pursuant to 18 U.S.C. § 3731,1 we


        *
            District Judge of the Western District of Texas, sitting by designation.
        **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        1
            In relevant part, § 3731 states:

        An appeal by the United States shall lie to a court of appeals from a decision or order
        of a district court suppressing or excluding evidence or requiring the return of seized
        property in a criminal proceeding, not made after the defendant has been put in
   Case: 10-60709      Document: 00511523869          Page: 2     Date Filed: 06/28/2011




have considered the pertinent portions of the record, the parties’ briefs, and oral
argument of counsel and we conclude that the district court committed no
reversible error in its determination that the evidence at issue should be
suppressed. Accordingly, the appealed suppression order is AFFIRMED and the
case is REMANDED to the district court for further disposition.2
                                           ORDER AFFIRMED; CASE REMANDED.




       jeopardy and before the verdict or finding on an indictment or information, if the
       United States attorney certifies to the district court that the appeal is not taken for
       purpose of delay and that the evidence is a substantial proof of a fact material in the
       proceeding.
       2
         This interlocutory appeal was brought by the United States on the grounds that it
“could not proceed to trial without this evidence.” Appellant Br. at 3. Thus, it appears that
the indictment and the case are still pending. We leave it to the parties and to the district
court on remand to take such further action as is appropriate.
