     Case: 12-41002       Document: 00512385672         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013
                                     No. 12-41002
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

MIGUEL ANGEL VALDEZ,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-926-2


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Miguel Angel Valdez appeals his conviction for conspiracy to possess with
the intent to distribute five kilograms or more of cocaine and his within-
guidelines sentence of 121 months. Valdez argues that the district court erred
in denying his motion to suppress based on the finding that he lacked standing
to challenge the search of a barn because he had no possessory or privacy
interest in the property. He contends that under Brendlin v. California, 551
U.S. 249 (2007), he had standing to challenge the legality of the simultaneous

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41002     Document: 00512385672       Page: 2   Date Filed: 09/25/2013

                                   No. 12-41002

seizure of himself and his co-conspirators despite the fact that he was not the
owner of the barn.
       We review de novo whether a defendant has standing to challenge the
legality of a search under the Fourth Amendment. United States v. Riazco, 91
F.3d 752, 754 (5th Cir. 1996). In essence, Valdez seeks to vicariously challenge
his co-conspirator’s detention. However, an individual cannot raise a vicarious
Fourth Amendment claim. Rakas v. Illinois, 439 U.S. 128, 133-44 (1978).
      Additionally, Valdez’s reliance on Brendlin for the proposition that an
individual without a possessory or privacy interest in a thing searched has
standing to challenge the search is misplaced. In Brendlin, the Supreme Court
held that the passenger of a vehicle has standing to contest the legality of the
traffic stop that results in his own detention. 551 U.S. at 251. There is no
indication in Brendlin that an individual who lacks a possessory interest in a
place or thing searched has standing to challenge the legality of that search.
Because Valdez did not establish that he had either “a property or possessory
interest in the [barn],” Riazco, 91 F.3d at 754, the district court correctly decided
that he did not have standing to challenge the search of it. See Rakas, 439 U.S.
at 133-48.
      Valdez also argues that the Government refused to file a § 5K1.1 motion
for unconstitutional reasons. Specifically, he contends that the Government
refused to file the motion because Valdez asserted his Fourth Amendment rights
when he filed the motion to suppress.
      When the Government refuses to file a § 5K1.1 motion, such refusal is not
reviewable unless it is based on an “unconstitutional motive.” Wade v. United
States, 504 U.S. 181, 185-86 (1992). The record does not support a “substantial
threshold showing” that the Government’s motive in refusing to file a § 5K1.1
motion was based on a unconstitutional reason. United States v. Sneed, 63 F.3d




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                                No. 12-41002

381, 388 n.6 (5th Cir. 1995). Rather, the Government refused to file the motion
based on the conclusion that Valdez failed to provide substantial assistance.
      Accordingly, the judgment of the district court is AFFIRMED.




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