                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16130         ELEVENTH CIRCUIT
                                                        JUNE 22, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                      D. C. Docket No. 09-00007-CR-A-N

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOSE A. GONZALEZ,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________
                               (June 22, 2010)


Before DUBINA, Chief Judge, CARNES and MARTIN, Circuit Judges.

PER CURIAM:

     Appellant Jose Gonzalez appeals his convictions for conspiracy to distribute
or possess with intent to distribute, and possession with intent to distribute, five or

more kilograms of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1)

and 846 and 18 U.S.C. § 2. On appeal, he argues that the district court erred by

denying his motion to suppress the cocaine seized from his truck. He contends that

he did not commit a traffic violation by driving over the fog line, and therefore the

police did not have probable cause to pull him over. He also contends that he

never consented to the search of his truck.

       A district court’s denial of a motion to suppress evidence is a mixed question

of law and fact, and we review rulings of law de novo and findings of fact for clear

error, in the light most favorable to the prevailing party, which in this case is the

government. United States v. Lindsey, 482 F.3d 1285, 1290 (11th Cir. 2007).            We

review issues raised for the first time on appeal for plain error. United States v.

Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007). We will only reverse when: (1)

there is an error; (2) that is plain or obvious; (3) that affects the substantial rights of

the defendant; and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Id.

       A valid appeal waiver is generally enforceable, and precludes a party from

raising issues unless the claims are specifically excluded from the appeal waiver.

See United States v. Frye, 402 F.3d 1123, 1129 (11th Cir. 2005); United States v.



                                             2
Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006). Where the government does not

seek to invoke an appeal waiver, but instead argues an issue on the merits, and

where the application of the waiver is not outcome determinative, we may ignore

the waiver and consider the issue on the merits. See United States v. Valnor, 451

F.3d 744, 745 n.1 (11th Cir. 2006) (involving sentencing issues).

      The Fourth Amendment of the U.S. Constitution provides that: “The right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated . . .” U.S. Const. amend.

IV. A law enforcement official may stop a vehicle if there is probable cause to

believe that the driver is violating a traffic law or regulation. United States v.

Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998). Under Ala. Code § 32-

6-49.3(21)(b), a serious traffic violation includes “improper or erratic traffic lane

changes.” Where objectively reasonable conditions permit a stop, “the officer’s

motive in making the traffic stop does not invalidate what is otherwise objectively

justifiable behavior under the Fourth Amendment.” United States v. Harris, 526

F.3d 1334, 1337 (11th Cir. 2008), cert. denied, 129 S. Ct. 569 (2008) (internal

quotation marks omitted). We will accept the district court’s credibility

determination of a witness “unless we are left with ‘the definite and firm

conviction that a mistake has been committed.’” United States v. Chirinos, 112



                                            3
F.3d 1089, 1102 (11th Cir. 1997) (internal quotation marks omitted).

      Based on our review of the record, we conclude that the district court did not

clearly err in accepting the testimony of Corporal Dunn that Gonzalez drove his

truck across the fog line and committed a traffic violation. Further, although a

surveillance video on the police car does not clearly show that Gonzalez’s truck

crossed the fog line, it does not contradict Dunn’s testimony that the truck did

cross the fog line. Accordingly, the police had probable cause that Gonzalez

committed a traffic violation, and thus were justified in pulling him over. Finally,

although the appeal waiver bars Gonzalez from raising the consent issue on appeal,

the government has only argued that the issue is waived because Gonzalez did not

raise it in his initial motion to suppress. Because the government does not invoke

the appeal waiver, we review the consent issue for plain error. We find no error

because the record demonstrates that Dunn gave unrefuted testimony that he

received consent to search the truck.

      For the above-stated reasons, we affirm Gonzalez’s conviction.

      AFFIRMED.




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