                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                        REVISED August 13, 2007
                                                                May 16, 2007
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                             No. 05-41369



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

RAUL JAVIER STEVENS; ALEJANDRO STEVENS

                       Defendants - Appellants



            Appeals from the United States District Court
           for the Southern District of Texas, Brownsville


Before KING, GARZA, and PRADO, Circuit Judges.

KING, Circuit Judge:

     Defendants-appellants Alejandro Stevens and Raul Stevens

challenge their convictions and sentences resulting from the

discovery by law enforcement agents of approximately 300 pounds

of marijuana in the backyard shed of the house in which they

resided.   Because Alejandro Stevens pleaded guilty and failed to

preserve the right to appeal the district court’s pretrial denial

of his motion to suppress, we AFFIRM his conviction and sentence.

We also AFFIRM Raul Stevens’s conviction and sentence, concluding

that the district court correctly denied Raul Stevens’s motion to

suppress, that Raul Stevens may not raise an ineffective
assistance of counsel claim on direct appeal, and that the

district court did not commit Booker error in imposing his

sentence.

               I. FACTUAL AND PROCEDURAL BACKGROUND

     In the course of investigating narcotics smuggling activity

in Brownsville, Texas, Special Agent Robert Mossman of the U.S.

Immigration and Customs Enforcement (“ICE”) became aware of a

plan to transport approximately 300 pounds of marijuana out of

Brownsville.   A confidential informant working with ICE agents

had two meetings with a woman named Johanna Espinosa in which

Espinosa and the informant made arrangements for the informant to

transport the marijuana.   ICE agents observed the meetings and

listened to the conversations at the meetings through a wire worn

by the informant.   The first meeting, during which Espinosa

phoned “George” and then “Raul” for information, revealed that

the informant would be driving the marijuana to Georgia and that

he would be paid $10,000 for the job.

     A second meeting occurred the next day when the informant

met Espinosa and another man, George, to finalize the

arrangements for transporting the marijuana.   The informant

brought empty produce boxes in which to pack the marijuana for

transport.   After meeting with Espinosa, George and the informant

left the second meeting together in the informant’s car, with

George driving.   As George drove the car, he engaged in erratic



                                -2-
driving, or “heat runs,” where he made quick U-turns and pulled

into driveways and parking lots to see if he was being followed.

After about forty minutes of heat runs, George and the informant

met two men in a Ford Expedition in a supermarket parking lot.

The identity of the driver of the Expedition was unknown; he was

later identified as defendant-appellant Alejandro Stevens.

Alejandro Stevens assisted George and the informant in

transferring the produce boxes from the informant’s car to the

Expedition.   The boxes were to be taken to the marijuana stash

house to be loaded with the marijuana.

     After loading the boxes into the Expedition, George and the

informant returned to the original meeting location with

Espinosa, again engaging in heat runs along the way.   Espinosa

confirmed that the boxes were being taken to the stash house for

loading, and she told the informant that she would call him when

the boxes were loaded.   Meanwhile, ICE agents followed the

Expedition, which eventually arrived at 2994 Dana (the “Dana

house”) in Brownsville, Texas, after engaging in heat runs.

Agents believed that the marijuana was located at the Dana house

and would be loaded into the empty produce boxes.   A surveillance

team directed by Agent Mossman watched the Dana house from

several locations, including the side of the house, an alley

behind the house, and a school across the street.   That night,

the surveillance team observed people going back and forth from

the house to a shed in the backyard.   Agent Mossman terminated

                                -3-
the surveillance at 9:30 p.m. that night.

     Agent Mossman’s team of agents planned to attempt to gain

consent to search the home the following morning at 9:00 a.m.

Surveillance agents arrived at the house around 8:00 a.m. and

notified the “consent team” before 9:00 a.m. that three people

had left the house in the Expedition.   The surveillance team did

not know at the time who was in the car, but they later learned

that the driver was defendant-appellant Raul Stevens and that the

two passengers were Raul Stevens’s daughter and defendant-

appellant Alejandro Stevens, his adult son.   Raul Stevens dropped

off his daughter at a local college.    While the surveillance team

followed the Expedition, the consent team, including Agent

Mossman, arrived at the house to attempt to gain consent.    Agents

believed that there was someone in the house because there was a

car in the driveway.   However, no one answered the door.

     Agent Mossman, still at the house, remained in radio and

phone contact with the surveillance team following the

Expedition.   He ran the Expedition’s registration and learned

that it was registered to Raul Stevens at the Dana house address.

The surveillance team told Agent Mossman that the Expedition was

on 12th Street in Brownsville driving toward the bridge to

Mexico.   Concerned that the car was driving into Mexico, Agent

Mossman instructed the surveillance agents to make a traffic stop

and to ask Raul Stevens if he would consent to a search of the

Dana house and return to the Dana house to undertake the search.

                                -4-
The Expedition was being followed by Agent Gentry driving one

unmarked car and Deputy Silva driving another unmarked car.

Deputy Martinez accompanied Deputy Silva.   As the two officials

followed the Expedition in their cars, they attempted to avoid

detection by alternating the lead car position and by

alternatively turning off the route taken by the Expedition.

Agent Gentry informed Deputy Silva that he saw the Expedition

make an illegal lane change while Deputy Silva was driving on

another street.   However, it was Deputy Silva and Deputy Martinez

who executed the traffic stop of the Expedition.   They did so by

turning on the car’s siren, pulling along side of the Expedition,

showing Deputy Martinez’s sheriff’s badge to the driver, and

asking him to pull over.

     Deputy Silva approached the car and asked the driver, Raul

Stevens, for his driver’s license and proof of insurance.     Agent

Gentry pulled up behind the Expedition as Deputy Silva asked for

these items.   Without informing him of the traffic violation,

Deputy Silva then informed Raul Stevens that a customs agent,

Agent Gentry, wanted to speak to him.   Agent Gentry approached

Raul Stevens and informed him that they were conducting a

narcotics investigation, that there were agents at the Dana

house, and that they thought that there were “things . . . going

on at his house.”   According to Agent Gentry, he asked for

consent to search the house, and Raul Stevens consented to the

search.   Agent Gentry then asked Raul Stevens if he would

                                -5-
accompany him back to the house, and Raul Stevens agreed to do

so.   Raul Stevens accompanied Agent Gentry to Gentry’s vehicle

and got in the front seat.   On their way to the house, Agent

Gentry explained to Raul Stevens that agents believed that there

were narcotics in the house.   He asked him if his son, Alejandro

Stevens, was involved in narcotics, and Raul Stevens replied that

he didn’t know.

      When Raul Stevens arrived at the house with Agent Gentry,

Agent Mossman was at the house with an additional six officers.

Agent Mossman told Raul Stevens about what the agents had seen

during the surveillance of the house and asked for his consent to

search the house.   At the suppression hearing, Raul Stevens

denied giving consent, but Agent Mossman and Agent Gentry

testified that Raul Stevens verbally consented to the search.

They also testified that when they asked him to sign a consent

form, he again said that they could search the house but that he

would not sign anything.   The door to the house was locked, but

Raul Stevens produced the keys to the house and unlocked and

opened the door.

      Agent Mossman and Raul Stevens then entered the house.    Raul

Stevens cooperated in the search, directing Agent Mossman to his

office, where agents found an AK-47, a small machine pistol, a

shotgun, three handguns, thousands of rounds of ammunition,

bullet-proof vests, and laser sights for assisting a shooter in

focusing on a target.   Agents also found a pound of marijuana in

                                -6-
the office with the guns and six grams of cocaine in Raul

Stevens’s bedroom.

     While still inside the house, Agent Mossman asked Raul

Stevens if he could also search the shed in the backyard behind

the house.   The door from the house to the backyard was locked,

but Raul Stevens produced the key and unlocked the door so they

could enter the yard.   Agent Mossman observed two locked doors on

the shed.    Raul Stevens informed Agent Mossman that both locked

doors led to the same area within the shed.     Raul Stevens then

produced the key to the locked shed door and unlocked it.     After

searching the room in the shed and finding no drugs, canine

inspectors determined that a piece of plywood was sealing another

door inside the shed and confirmed that the second external door

provided entry into this room.   The agents removed the plywood,

opened the door, and found approximately 306 pounds of marijuana.

      Alejandro Stevens remained at the scene of the traffic stop

with Deputy Silva and Deputy Martinez when Raul Stevens left with

Agent Gentry.   According to Deputy Silva, Alejandro Stevens asked

if he could leave the traffic stop, and Deputy Silva said “no.”

While Alejandro Stevens waited, he spoke on his cell phone.     He

then asked Deputy Silva if he could wait inside the Expedition.

Deputy Silva said “yes,” and Deputy Silva and Deputy Martinez

waited in the Expedition with him.     After agents at the house

found the drugs, Agent Mossman told Deputy Silva and Deputy

Martinez to bring Alejandro Stevens to the house.

                                 -7-
       Both Raul Stevens and Alejandro Stevens were placed under

arrest and handcuffed at the house.     They were not given Miranda

warnings at this time.    Agents placed them in the living room,

where Raul Stevens sat on a couch about ten feet from Alejandro

Stevens, who sat in a chair.    Agent Mossman testified that he

told them, “[I]f you guys want to talk to me, you know where I

am.”    Agent Mossman waited outside.   Another agent came outside

and told Agent Mossman that Alejandro Stevens wanted to talk to

him.    Agent Mossman went inside and asked Alejandro Stevens what

he wanted to talk about.    Alejandro Stevens said that he could

tell him where there were stash houses containing thousands of

pounds of marijuana if Agent Mossman would help him.     Agent

Mossman asked him where the stash house was, and Alejandro

Stevens told him it was in Mexico.      Agent Mossman testified that

Raul Stevens then told him that the cocaine in the bedroom

belonged to him.    According to Agent Mossman, Raul Stevens made

this statement voluntarily and not in response to any

questioning.

       After the search of the house was completed, agents took

Raul Stevens and Alejandro Stevens to the ICE office, where Agent

Mossman testified that they were given their Miranda warnings.

After their warnings were read, Alejandro Stevens repeated the

same information that he told Agent Mossman at the Dana house

about the stash houses.    Raul Stevens again claimed ownership of

the cocaine and everything in the house but disclaimed ownership

                                 -8-
of the marijuana found in the shed.

     The grand jury indicted Alejandro Stevens and Raul Stevens

on three counts.    Count One charged each with conspiracy to

possess with intent to distribute approximately 139 kilograms

(306 pounds) gross weight of marijuana in violation of 21 U.S.C.

§§ 846, 841(a)(1), and 841(b)(1)(B).    Count Two charged each with

possession with intent to distribute the same in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2.      Count

Three charged each with possession with intent to distribute a

quantity exceeding 100 kilograms or more of marijuana within 1000

feet of a public elementary school in violation of 21 U.S.C.

§§ 841(a)(1) and 860.

     Alejandro Stevens filed a pretrial motion requesting the

district court to suppress statements made and physical evidence

seized at the Dana House.    Raul Stevens also filed a pretrial

motion to suppress all evidence seized as the result of the

search of the house and all statements he made after his arrest.

After a hearing, the district court denied each defendant’s

motion to suppress.    Alejandro Stevens then pleaded guilty to

Count Two in exchange for the government dismissing Counts One

and Three.    This agreement was entered into at Alejandro

Stevens’s rearraignment hearing without a written plea agreement

preserving his right to appeal the denial of his motion to

suppress.    Raul Stevens proceeded to a jury trial and was

convicted on all three counts.

                                 -9-
     The district court sentenced Alejandro Stevens to serve a

term of 110 months in the custody of the Bureau of Prisons and

five years’ supervised release and ordered a $100 special

assessment.   On the same day, the court sentenced Raul Stevens to

serve a total of 274 months in the custody of the Bureau of

Prisons followed by eight years of supervised release.    Raul

Stevens’s Presentence Report (“PSR”) reflected a base offense

level of 28, for which the corresponding sentence range is 87 to

108 months’ imprisonment.    The PSR recommended enhancements

resulting in a total offense level of 35, for which the

corresponding sentencing range is 210 to 262 months’

imprisonment.   The government moved for an upward departure, and

the district court did so on the basis of the large cache of

loaded weapons in the house as well as the proximity of those

weapons to an elementary school and crosswalk.    The court

additionally ordered Raul Stevens to pay a $14,000 fine and a

$300 special assessment.

     Alejandro Stevens now appeals the district court’s denial of

his motion to suppress.    Raul Stevens likewise appeals the

district court’s denial of his motion to suppress.    Raul Stevens

additionally claims ineffective assistance of counsel and

challenges his sentence on the basis of Booker error.

                      II. SUPPRESSION ISSUES

A.   Standard of Review



                                -10-
     In an appeal from the denial of a motion to suppress, we

review the district court’s factual findings for clear error and

the district court’s ultimate conclusion as to the

constitutionality of the law enforcement action de novo.     United

States v. Chavez-Villarreal, 3 F.3d 124, 126 (5th Cir. 1993).      If

a particular suppression argument is not made to the district

court, however, our review is for plain error.     United States v.

De Jesus-Batres, 410 F.3d 154, 158 (5th Cir. 2005).    We view the

evidence introduced at the suppression hearing in the light most

favorable to the prevailing party, which in this case is the

government.   United States v. Santiago, 310 F.3d 336, 340 (5th

Cir. 2002).

B.   Alejandro Stevens’s Motion to Suppress

     Alejandro Stevens argues that the district court erred when

it denied his motion to suppress because law enforcement

officials obtained physical evidence from the Dana House and

statements from him in violation of his Fourth and Fifth

Amendment rights.   The government responds that Alejandro Stevens

entered into an unconditional guilty plea and therefore waived

his right to appeal the district court’s denial of his motion to

suppress.

     When a defendant enters a voluntary and unconditional guilty

plea, the plea has the effect of waiving all nonjurisdictional

defects in the prior proceedings.     United States v. Wise, 179



                               -11-
F.3d 184, 186 (5th Cir. 1999); United States v. Bell, 966 F.2d

914, 915 (5th Cir. 1992).    That waiver includes any further

objection to evidence admitted pursuant to a district court’s

denial of a motion to suppress.    Wise, 179 F.3d at 186.     A

defendant may enter a conditional guilty plea, however, and

preserve the right to appeal a district court’s adverse ruling on

a pretrial motion.    See FED. R. CRIM. P. 11(a)(2).   Rule 11

provides that a conditional plea must be made in writing and

consented to by the prosecution and the district court.       See id.;

see also Wise, 179 F.3d at 186.    Rule 11(a)(2)'s requirements of

government consent and court approval reflect that a defendant

has no absolute right to plead conditionally.     Wise, 179 F.3d at

187.    “The government and the court are free to reject a

conditional plea for any reason or no reason at all.”        Bell, 966

F.2d at 916.

       Rule 11(h) allows for variance from Rule 11(a)(2)’s

technical conditional plea requirements when the variance “does

not affect substantial rights.”    FED. R. CRIM. P. 11(h).    We have

excused harmless variances under Rule 11(h) where “the record

clearly indicates that the defendant intended to enter a

conditional guilty plea, that the defendant expressed the

intention to appeal a particular pretrial ruling, and that

neither the government nor the district court opposed such a

plea.”    United States v. Santiago, 410 F.3d 193, 197 (5th Cir.

2005), cert. denied, 126 S. Ct. 1565 (2006); accord Wise, 179

                                 -12-
F.3d at 187 (allowing variance from Rule 11(a)(2) when “the

spirit of [Rule 11(a)(2) is] fulfilled by a clear indication on

the record of the defendant’s intention to appeal particular

pretrial rulings, and the acquiescence of both the prosecution

and the court”).   For example, in Santiago we excused a

defendant’s variance from Rule 11(a)(2)’s technical requirements

and permitted an appeal where the record showed that the district

judge acknowledged the defendant’s reservation several times, the

government withdrew its initial objections to the defendant’s

reservation, the government submitted a factual basis sheet with

handwritten revisions stating that the defendant preserved his

right to appeal, and the district judge stated at the

rearraignment hearing that the defendant did not have to refer to

the factual basis sheet in order to preserve his right to appeal.

Santiago, 410 F.3d at 197-98.   By contrast, in Wise we concluded

that a defendant did not fulfill the “spirit” of Rule 11(a)(2)

where the defendant’s written plea agreement contained no

reservation of any kind, at the plea hearing the district judge

orally reviewed the terms of the unconditional plea agreement,

and both the defendant and his lawyer confirmed that there was no

other agreement between the defendant and the government.     Wise,

179 F.3d at 187.

     Alejandro Stevens concedes that when he pleaded guilty to

Count Two in exchange for the government’s dismissing Counts One

and Three, he did not explicitly preserve his right to appeal the

                                -13-
district court’s denial of his motion to suppress in a written

plea agreement in conformance with Rule 11(a)(2).    He argues,

however, that the record shows that he has fulfilled the “spirit”

of Rule 11(a)(2) according to our decisions in Santiago and Wise.

Alejandro Stevens points to two statements in the record as proof

of his intention to enter into a conditional plea.    First, in

response to questioning from the district judge about the genesis

of the plea agreement at the rearraignment hearing, the

government’s counsel stated that he “presumed” that Alejandro

Stevens’s attorney had approached the government about a plea to

preserve Alejandro Stevens’s right to appeal the ruling on his

motion to suppress.   Second, Alejandro Stevens’s PSR incorporated

his post-plea written statement that he “accept[ed]

responsibility for possession of marihuana seized . . . subject

to his motion to suppress.”   Alejandro Stevens urges that these

statements show that he and the government had a common

understanding that he would appeal and his attorney simply

“misspoke” when he later stated that there was no limitation on

the waiver of appeal.

     These two statements, when viewed in light of the

rearraignment and sentencing hearings in their entirety, are

insufficient to establish that Alejandro Stevens reached any

agreement with the government to enter a conditional plea.    To

the contrary, the record unambiguously shows that Alejandro

Stevens and his attorney denied that there was a conditional

                               -14-
plea.   Moreover, the record clearly shows that the government and

the district court never consented to a conditional plea.

     At Alejandro Stevens’s rearraignment hearing, there was a

misunderstanding among government attorneys as to whether

Alejandro Stevens would plead to Count Two or Count Three.    In an

effort to resolve the misunderstanding and proceed with the

hearing, the district judge questioned the government as to how

the plea had evolved, and the government recounted its

“presumption” as to why Alejandro Stevens had approached the

government to arrange a plea.   The district judge recessed the

hearing after her questioning failed to resolve the

misunderstanding.   When the hearing resumed, the district judge

orally reviewed Alejandro Stevens’s plea agreement and

specifically asked Stevens, his attorney, and the government

attorney about the scope of the plea agreement.   All three

individuals confirmed that the only agreement between the parties

was that Counts One and Three would be dropped in exchange for

the plea to Count Two.

     These affirmations establish that despite the government’s

statement that it “presumed” that Alejandro Stevens approached it

to discuss preserving his right to appeal, no such agreement

materialized.   Moreover, at Alejandro Stevens’s later sentencing

hearing, the district judge directly asked Alejandro Stevens’s

attorney and the government attorney whether there was a

limitation on the waiver of appeal, and each attorney answered

                                -15-
“no.”   Alejandro Stevens’s unilateral post-plea statement in the

PSR cannot overcome the unanimous disclaimer of any agreement

between Stevens and the government beyond that to drop Counts One

and Three in exchange for a plea to Count Two.     Because there is

no indication in the record that the government or the district

court consented to a conditional plea, we conclude that Alejandro

Stevens’s plea was unconditional.     Cf. Bell, 966 F.2d at 917

(concluding that there was no conditional plea where there was no

written agreement to preserve an issue for appeal, no express

acquiescence by the government, and no statement by the district

judge approving a conditional plea); Wise, 179 F.3d at 187

(concluding that there was no conditional plea where district

court orally confirmed that the written plea agreement which

contained no reservation was the entire agreement between the

parties).

     Because Alejandro Stevens pleaded guilty and failed to

preserve his right to appeal the district court’s denial of his

motion to suppress, we affirm his conviction and sentence.

C.   Raul Stevens’s Motion to Suppress

     Raul Stevens contends that the district court erred in

denying his motion to suppress evidence and statements.    First,

he denies ever consenting to the search and contends that the

search is illegal on that basis.    Second, he asserts that even if

he did consent, his statement of consent was given pursuant to



                               -16-
police questioning while he was in custody but before his Miranda

warnings were read to him.    He argues that because his Miranda

warnings had not been read to him before he was asked for

consent, his statement granting consent is inadmissible.     Third,

he asserts in the alternative that any consent was given while he

was illegally detained, and therefore his consent was not the

product of his free will.

     1.   Consent to Search

     Raul Stevens first denies consenting to the search of the

Dana house and urges that all physical evidence seized during the

warrantless search is therefore inadmissible.     The issue of

whether a defendant consented to a search is a question of fact

to be determined by the totality of the circumstances.      United

States v. Harrison, 918 F.2d 469, 473 (5th Cir. 1990).     Our

review is thus for clear error.     Id.   “Where the judge bases a

finding of consent on the oral testimony at a suppression

hearing, the clearly erroneous standard is particularly strong

since the judge had the opportunity to observe the demeanor of

the witnesses.”     United States v. Solis, 299 F.3d 420, 436 (5th

Cir. 2002) (quoting United States v. Kelley, 981 F.2d 1464, 1470

(5th Cir. 1993)).    A factual finding is clearly erroneous if,

although there is evidence to support it, after viewing the

record we are “left with the definite and firm conviction that a

mistake has been committed.”     United States v. U.S. Gypsum Co.,



                                 -17-
333 U.S. 364, 395 (1948).

     The district court found that Raul Stevens voluntarily

consented to the search of his home while on the front porch of

the Dana house.   Raul Stevens denies that he gave agents consent

to search his home.   He does not challenge the voluntariness of

his consent but rather disputes the fact of consent.   Beyond his

own denial of consent, the only evidence that he points to in

support of his argument is the fact that he refused to sign a

consent form authorizing the search of his home.

     The district court did not clearly err in concluding that

Raul Stevens granted consent to search his home.   The district

court credited the testimony of Agents Mossman and Agent Gentry.

Agent Mossman testified at the suppression hearing that he

requested consent from Raul Stevens while on the porch of the

home and that Raul Stevens verbally agreed to the request.    Agent

Mossman further testified that he then asked Raul Stevens to sign

a consent form, but Raul Stevens responded that he would not sign

a form.   Nevertheless, Raul Stevens repeated his verbal consent.

According to Agent Mossman’s testimony, Raul Stevens then used

his house key and opened the locked front door of the house.

After they entered the home together, Raul Stevens assisted

officers in locating weapons in the office.   They walked through

the home to the back door, and Raul Stevens unlocked the back

door so that officers could access the backyard.   Finally, Agent



                               -18-
Mossman testified that Raul Stevens used his keys again to open

the locked door of the backyard shed.

     Agent Gentry, who drove Raul Stevens from the traffic stop

to the Dana house, provided testimony consistent with that of

Agent Mossman.   Agent Gentry testified that he was on the front

porch of the house when Agent Mossman requested consent and that

Raul Stevens gave consent to the search.   Agent Gentry also

testified that after being asked to sign a consent form, Raul

Stevens replied, “[Y]ou can search the house, but I’m not signing

anything.”   Agent Gentry further testified that both the door to

the home and the backyard shed were locked and that Raul Stevens

produced the keys for each locked door and accompanied the agents

as they entered the home.

     Accordingly, the record shows that the district court did

not clearly err in concluding that Raul Stevens consented to the

search of his home.

     2.   Admissibility of Statements Granting Consent to Search

     In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme

Court held that in order to preserve the Fifth Amendment’s

privilege against self-incrimination, law enforcement officials

must inform a suspect in custody of his right to remain silent,

that any statement he makes may be used as evidence against him,

and that he has a right to retain counsel or have counsel

appointed for him.    Statements obtained during a custodial



                                -19-
interrogation without the benefit of adequate warnings under

Miranda are generally inadmissible.   Missouri v. Seibert, 542

U.S. 600, 608 (2004).   An individual is “in custody” for purposes

of Miranda “when placed under formal arrest or when a reasonable

person in the suspect's position would have understood the

situation to constitute a restraint on freedom of movement of the

degree which the law associates with formal arrest.”   United

States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en

banc).

     Raul Stevens urges that his right to receive Miranda

warnings was triggered at the traffic stop when he was questioned

by Agent Gentry.   He argues that Deputy Silva detained him

pursuant to a pretextual traffic stop and that he was taken into

custody at the point that Deputy Silva “surrendered” him to Agent

Gentry for questioning.   He further argues that any statement of

consent made at the Dana house is inadmissible because it was

given while he was in custody and pursuant to questioning by

Agent Mossman, but without the benefit of Miranda warnings.     He

contends that because the statement consenting to the search is

inadmissible, the illegal drugs and weapons discovered during the

subsequent search of his home and backyard shed are inadmissible

as fruit of the poisonous tree.1   The government responds that

     1
          Raul Stevens’s argument mentions in passing that he
claimed ownership of the cocaine found in the bedroom before
being given his Miranda rights. However, he develops no argument
for the exclusion of this statement, and in particular, advances

                               -20-
Miranda warnings were not applicable at the traffic stop because

the traffic stop was legitimate and, under Berkemer v. McCarty,

468 U.S. 420, 439-40 (1984), questioning a person at a routine

traffic stop is not “custodial interrogation” triggering the

right to Miranda warnings.   The government further argues that

Raul Stevens consented to the search before he left the traffic

stop and was not “in custody” when he arrived at the Dana house

because he voluntarily left the traffic stop with Agent Gentry.

     Because Raul Stevens raises his Miranda-based argument for

the suppression of his statement of consent for the first time on

appeal, we review for plain error.    Under the plain error

standard of review, we make three initial determinations:

(1) whether the district court committed error; (2) whether the

error is “clear and obvious”; and (3) whether the error affects

substantial rights.   United States v. Avants, 278 F.3d 510, 514

(5th Cir. 2002) (citing United States v. Olano, 507 U.S. 725, 732

(1993)).   If these three conditions are satisfied, we have

discretion to reverse the district court if we conclude that the

error “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.”    Olano, 507 U.S. at 732

(quoting United States v. Young, 470 U.S. 1, 15 (1985)); see also



no argument that the admission of the statement affected his
substantial rights under the Olano framework. Inadequately
briefed issues are deemed abandoned. United States v. Charles,
469 F.3d 402, 408 (5th Cir. 2006) (citing Dardar v. Lafourche
Realty Co., 985 F.2d 824, 831 (5th Cir. 1993)).

                               -21-
Avants, 278 F.3d at 514.

     Assuming arguendo that Raul Stevens was “in custody” for

Miranda purposes when he consented to the search, under the first

prong of plain-error review, we consider whether the court erred

by admitting evidence seized pursuant to that consent.         We

conclude that it did not.

     The failure of officials to give Miranda warnings before

asking for consent does not prohibit the use of a defendant’s in-

custody statements granting consent to a search.        See United

States v. Garcia, 496 F.2d 670, 675 (5th Cir. 1974); see also

United States v. Dancy, 861 F.2d 77, 80 (5th Cir. 1988) (holding

that Miranda warnings are not required to validate in-custody

consent searches).    A statement granting “consent to a search

. . . is neither testimonial nor communicative in the Fifth

Amendment sense.”    WAYNE R. LAFAVE, JEROLD H. ISRAEL, & NANCY J. KING,

CRIMINAL PROCEDURE § 3.10 (4th ed. 2004).   As we explained in

Garcia, a statement of consent is properly scrutinized under the

Fourth Amendment rather than the Fifth Amendment2:

               In   a   fifth   amendment   context   a
          defendant’s statements, in and of themselves,
          present the potential constitutional evil.
          For purposes of the fourth amendment . . . it
          is an unreasonable search that is to be
          condemned, not the use of the defendant’s

     2
          Raul Stevens does not argue that his consent was not
valid under a Fourth Amendment voluntariness standard. Rather,
he narrowly argues that his statement of consent is inadmissible
under the Fifth Amendment because he had not received his Miranda
warnings.

                                  -22-
          statements proving consent to a search.      A
          search and seizure produces real and physical
          evidence, not self-incriminating evidence.
          Our task under the fourth amendment is to test
          the reasonableness of a search and exclude
          evidence   procured   unreasonably.   .  .   .
          Therefore, Miranda’s ratio decidendi which was
          enunciated to strengthen the fifth amendment’s
          function in preserving the integrity of our
          criminal trials should not be superimposed
          ipso   facto    to   the    wholly   different
          considerations in fourth amendment analysis.

496 F.2d at 675.   Other courts considering the question have

similarly concluded that statements of consent are not

testimonial within the meaning of the Fifth Amendment.3

     Further, the instant case is unlike United States v. Green,

272 F.3d 748, 752 (5th Cir. 2001), where we held that asking an

arrested defendant to disclose the location of firearms and open

     3
          See, e.g., United States v. McClellan, 165 F.3d 535,
544 (7th Cir. 1999) (“[A] request for consent to search is not an
interrogation within the meaning of Miranda because the giving of
such consent is not a self-incriminating statement.”) (internal
quotations omitted); United States v. McCurdy, 40 F.3d 1111, 1118
(10th Cir. 1994) (“An officer's request to search a defendant's
automobile does not constitute interrogation invoking a
defendant's Miranda rights.”); People v. Thomas, 12 Cal. App. 3d
1102, 1110-11 (Cal. Ct. App. 1970) (“The fact that the search
leads to incriminating evidence does not make the consent
testimonial.”); see also United States v. Payne, 119 F.3d 637,
643-44 (8th Cir. 1997) (“Miranda rights affect the integrity of
the truth finding process in a criminal trial, but Fourth
Amendment rights go to the right of privacy and to be left alone.
As the purposes of the two protections are different, it would be
unreasonable to require Miranda warnings before a request for
permission to search. Instead, the fact that Miranda warnings
were not given will simply be a factor to consider under the
voluntariness test.” (internal citations omitted)); but see
Oregon v. Williams, 432 P.2d 679, 683 (Or. 1967) (“In effect, the
request to search is a request that defendant be a witness
against himself which he is privileged to refuse under the Fifth
Amendment.”).

                               -23-
cases containing those firearms after he had been given his

Miranda warnings and had requested counsel was “custodial

interrogation” resulting in testimonial acts inadmissible under

the Miranda doctrine.    In this case, there were no such

testimonial acts, even where Raul Stevens produced the key to the

Dana house and unlocked the door.      The record shows that Raul

Stevens gave verbal consent and unlocked the door to the house in

response to Agent Mossman’s request to search the house.      This is

unlike the request in Green to disclose the location of firearms,

which was a question likely to elicit an incriminating response.

Id.

      Accordingly, we conclude that the district court did not err

in admitting the evidence seized in the search of the Dana house

pursuant to Raul Stevens’s un-Mirandized statement of consent.

Even if, arguendo, there was error, it was not “clear and

obvious.”

      3.    Consent Pursuant to an Illegal Detention

      Finally, Raul Stevens asserts that even if he did consent to

the search, his consent was not voluntary if it was given

pursuant to an illegal detention.      “Consent to search may, but

does not necessarily, dissipate the taint of a fourth amendment

violation.”    Chavez-Villarreal, 3 F.3d at 127.    Raul Stevens

asserts in conclusory fashion that he was illegally detained and

that there were no intervening circumstances between his illegal



                                -24-
detention and his statement of consent to remove the taint of the

illegal detention.   The reasonableness of a traffic stop is a

conclusion of law, Harrison, 918 F.2d at 473, and because Raul

Stevens raised the legitimacy of the traffic stop below, our

review is de novo, Chavez-Villarreal, 3 F.3d at 126.

     The reasonableness of traffic stops and investigative

detentions of motorists who are suspected of criminal activity is

analyzed under the framework established in Terry v. Ohio, 392

U.S. 1 (1968).   See United States v. Sharpe, 470 U.S. 675, 682

(1985) (applying Terry analysis to stop of vehicles suspected of

transporting drugs); Harrison, 918 F.2d at 472 (applying Terry

analysis to night-time stop of vehicle driving without lights

after it was observed driving away from rural airstrip where

airplane suspected of carrying illegal drugs had landed); United

States v. Valadez, 267 F.3d 395, 397-98 (5th Cir. 2001) (applying

Terry analysis to stop of vehicle for two suspected traffic

violations).   Under Terry, we determine the reasonableness of an

investigative stop by examining: (1) whether the officer’s action

of stopping the vehicle was justified at its inception, and (2)

whether the officer’s actions were reasonably related in scope to

the circumstances that justified the stop.   Terry, 392 U.S. at

19-20; Valadez, 267 F.3d at 398.

     Raul Stevens raises two arguments for why his detention was

illegal.   Raul Stevens first articulates that his detention was

unlawful because the initial traffic stop based on the illegal

                               -25-
lane change was pretextual.    But it is well established that

“[s]o long as a traffic law infraction that would have

objectively justified the stop had taken place, the fact that the

police officer may have made the stop for a reason other than the

occurrence of the traffic infraction is irrelevant for purposes

of the Fourth Amendment.”     Goodwin v. Johnson, 132 F.3d 162, 173

(5th Cir. 1998) (emphasis added) (citing Whren v. United States,

517 U.S. 806 (1996)).   The district court credited Agent Gentry’s

testimony and concluded that the traffic stop was objectively

reasonable because Raul Stevens made an illegal lane change.     The

record supports this conclusion, and at oral argument Raul

Stevens admitted that he did not dispute that he changed lanes

illegally.   Therefore, his first argument has no merit.

     Second, at oral argument, Raul Stevens argued that his

detention became unreasonable (and therefore illegal) under

Terry’s second prong because the basis for the traffic stop was

the illegal lane change but the subsequent actions of the

officers were not reasonably related to the illegal lane change

justifying the stop.    His argument, however, ignores the district

court’s conclusion that the stop was independently valid under

Terry because officers were aware of sufficient articulable facts

to form a reasonable suspicion that the Expedition was involved

in criminal activity apart from the illegal lane change.    Giving

a pretextual traffic violation as the reason for a stop does not

invalidate an otherwise justified stop.     Cf. Harrison, 918 F.2d

                                 -26-
at 472 (stopping vehicle for articulated reasons of driving above

speed limit and without lights was not illegal where officer

independently had reasonable suspicion that vehicle was

trafficking drugs).   Important to our decision is the fact that

Raul Stevens does not argue under Terry’s first prong that

officers did not have reasonable suspicion to justify the stop

based on their surveillance of the Dana house and the meetings

between Espinosa, Alejandro Stevens, and the informant.   Even

more important is the fact that he does not argue under Terry’s

second prong that the subsequent actions of the officers exceeded

the scope of this independent justification for stopping the

vehicle.   Inadequately briefed issues are deemed abandoned.

Charles, 469 F.3d at 408 (citing Dardar, 985 F.2d at 831).

     Concluding that none of Raul Stevens’s arguments for

suppression is availing, we affirm the district court’s denial of

his motion to suppress.

              III. INEFFECTIVE ASSISTANCE OF COUNSEL

     Raul Stevens claims, for the first time on appeal, that he

was denied his Sixth Amendment right to effective assistance of

counsel at trial when his attorney failed to raise the violation

of his right to be given Miranda warnings during custodial

interrogation.   He also raises a number of other errors he

contends his attorney made to support his argument that his

attorney failed to achieve an objective standard of



                               -27-
reasonableness under the standard set forth by Strickland v.

Washington, 466 U.S. 668, 669 (1984).

     As a general rule, we do not review Sixth Amendment claims

of ineffective assistance of counsel on direct appeal unless they

were adequately raised in the trial court.     United States v.

Gibson, 55 F.3d 173, 179 (5th Cir. 1995).    Because the trial

court is the proper place to develop the record necessary for the

resolution of ineffective assistance of counsel claims, only in

“rare cases where the record allow[s] us to evaluate fairly the

merits of the claim” will this court resolve ineffective

assistance issues on direct appeal.     United States v. Palmer, 122

F.3d 215, 221 (5th Cir. 1997).

     Raul Stevens concedes he did not raise his ineffective

assistance of counsel claim at trial.    Nevertheless, he urges

that this is one of those “rare cases” where the record allows us

to evaluate the merits of his claim.    We disagree.   Where a claim

of ineffective assistance of counsel has not been raised below,

the exception to our general rule of non-review is typically

satisfied only where the actual claim was raised and developed in

a post-trial motion to the district court.     Compare Gibson, 55

F.3d at 179 (granting an exception to the general rule of non-

review on direct appeal because the defendant’s post-trial

motions in the district court raised allegations of trial

counsel’s deficiencies), with United States v. Wallace, 32 F.3d

921, 930 (5th Cir. 1994) (dismissing ineffective assistance of

                                 -28-
counsel claim on direct appeal even where the claim was mentioned

at trial because the record was not sufficiently developed), and

United States v. Gonzalez, 436 F.3d 560, 581 (5th Cir. 2006)

(dismissing ineffective assistance of counsel claim on direct

appeal even where record showed counsel’s failure to object

because actual claim had not been raised and developed below).

In this case, the record is not sufficiently developed with

respect to Raul Stevens’s ineffective assistance of counsel claim

to justify an exception to our general rule of non-review.

Accordingly, we deny relief on Raul Stevens’s present ineffective

assistance of counsel claim without prejudice to his right to

pursue the claim in collateral review.

                         IV. SENTENCING

     The district court imposed enhancements to Raul Stevens’s

sentence for obstruction of justice, his role in the offense, and

for committing the offense while on supervised release.   Relying

on United States v. Booker, 543 U.S. 220 (2005), Raul Stevens

objected to these enhancements below and now re-urges that the

district court violated the Sixth Amendment by enhancing his

sentence based on facts not found by the jury beyond a reasonable

doubt.

     Booker error occurs when the sentencing judge bound by

mandatory United States Sentencing Guidelines (“Guidelines”)

increases the defendant’s sentencing range based on facts not



                              -29-
found by the jury or admitted by the defendant.     United States v.

Mares, 402 F.3d 511, 518 (5th Cir. 2005), cert. denied, 126 S.

Ct. 43 (2005).    But under Booker, “with the mandatory use of the

Guidelines excised, . . . [t]he sentencing judge is entitled to

find by a preponderance of the evidence all the facts relevant to

the determination of a Guideline[s] sentencing range.”    Id. at

519.    Raul Stevens was sentenced under the post-Booker advisory

Guidelines system, and the record indicates that the district

judge was aware of the Guidelines’ advisory nature.    There was

therefore no Booker error in Raul Stevens’s sentencing.

                            V. CONCLUSION

       For the foregoing reasons, Alejandro Stevens’s and Raul

Stevens’s convictions and sentences are AFFIRMED.




                                -30-
