     Case: 13-50965      Document: 00512890591         Page: 1    Date Filed: 01/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50965
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 6, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

SANDRO FERNANDEZ-VACA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-38-1


Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Sandro Fernandez-Vaca (Fernandez) was charged with possession with
intent to distribute 500 grams or more of a mixture or substance containing
methamphetamine. Following the partial denial of his motion to suppress,
Fernandez proceeded to a bench trial on stipulated facts. The district court
found Fernandez guilty as charged and sentenced him to 63 months in prison
and two years of supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-50965       Document: 00512890591    Page: 2    Date Filed: 01/06/2015


                                  No. 13-50965

      Fernandez argues that the court’s finding that he consented to the initial
search of his car for his driver’s license is clearly erroneous. In the alternative,
he argues for the first time on appeal that if he did consent, his consent was
not voluntary.
      The court’s finding of consent was based on the Border Patrol agent’s
testimony and is not clearly erroneous, as it is plausible in light of the record
as a whole. See United States v. Gomez, 623 F.3d 265, 268 (5th Cir. 2010). To
the extent there were inconsistencies or conflicts with the agent’s testimony,
“[t]he district court was able to observe the demeanor of the witness at the
suppression hearing . . . and thus was in a unique position to gauge credibility.”
United States v. Valentine, 401 F.3d 609, 614 (5th Cir. 2005) (affirming the
denial of a motion for acquittal despite an officer’s inconsistent testimony at
the suppression hearing and at trial); see also United States v. Stevens, 487
F.3d 232, 240 (5th Cir. 2007). As in United States v. Watson, 273 F.3d 599, 604
(5th Cir. 2001), to the extent the district court conflated the question of the
existence of consent with the question of the voluntariness of that consent, that
conflation does not call into doubt the district court’s finding that Fernandez
did, in fact, consent.
      Despite opportunities, Fernandez did not argue at any time in the
district court that, if given, his consent was not voluntary. “[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. Scroggins,
599 F.3d 433, 448 (5th Cir. 2010) (internal quotation marks and citation
omitted).    “Nonetheless, our cases identifying such waiver have often
proceeded to evaluate the issues under a plain error standard for good
measure.” Scroggins, 599 F.3d at 448.




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    Case: 13-50965     Document: 00512890591      Page: 3   Date Filed: 01/06/2015


                                  No. 13-50965

      The district court’s determination of the voluntariness of consent is a
question of fact. United States v. Dilley, 480 F.3d 747, 749 (5th Cir. 2007). This
court has long held that “‘questions of fact capable of resolution by the district
court upon proper objection . . . can never constitute plain error.’” United States
v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012) (quoting United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991)); see United States v. Huesca, 199 F.3d 440,
1999 WL 1068212, 1 (5th Cir. 1999) (unpublished) (regarding voluntariness of
consent). Thus, review of Fernandez’s argument that the district court erred
in finding that his consent was voluntary is foreclosed because it was waived
and because it is not subject to plain error review. See Scroggins, 599 F.3d at
448; Claiborne, 676 F.3d at 438. Even if we reviewed the question, under the
totality of the circumstances, the district court did not reversibly err in finding
that the consent was given voluntarily.
      AFFIRMED.




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