     Case: 13-50331      Document: 00512892265         Page: 1    Date Filed: 01/07/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50331
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 7, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JOHN B. ALMAGUER, also known as John Almaguer, also known as Juan
Almaguer, also known as John Berban Almaguer, also known as John B.
Almagues,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CR-626-1


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       John B. Almaguer pleaded guilty to possession with intent to distribute
methamphetamine and possession of a firearm in furtherance of a drug
trafficking crime. As part of his plea agreement, Almaguer waived his right to
appeal his conviction and sentence. However, he reserved the right to appeal
the district court’s denial of his motion to suppress the evidence. On appeal,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50331    Document: 00512892265     Page: 2   Date Filed: 01/07/2015


                                 No. 13-50331

he argues that the district court erred by denying his motion to suppress and
seeks to challenge the reasonableness of his sentence. The Government seeks
enforcement of the waiver provision.
      When reviewing the denial of a motion to suppress evidence, we review
factual findings for clear error and the ultimate constitutionality of law
enforcement action de novo. United States v. Cherna, 184 F.3d 403, 406 (5th
Cir. 1999). The evidence is viewed in the light most favorable to the prevailing
party, in this case, the Government. See United States v. Allen, 625 F.3d 830,
834 (5th Cir. 2010). Almaguer challenges the district court’s factual finding
that the search warrant was issued prior to the search.
      The district court’s finding that the warrant was issued at 11:10 a.m.,
prior to the search of Almaguer’s residence, is plausible in light of the record
as a whole. See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
Accordingly, Almaguer’s argument that the evidence should be suppressed
because the search took place prior to the issuance of the search warrant is
without merit.
      Almaguer also challenges the district court’s conclusion that the officers
relied on the warrant in good faith. We engage in a two-step inquiry when
reviewing a district court’s denial of a defendant’s motion to suppress when a
search warrant is involved. Cherna, 184 F.3d at 407. First, we determine
whether the good faith exception to the exclusionary rule applies and, second,
whether the magistrate had a substantial basis for concluding that probable
cause existed. United States v. Mays, 466 F.3d 335, 343-44 (5th Cir. 2006);
Cherna, 184 F.3d at 407. If the good faith exception applies, then no further
analysis is conducted, and the district court’s denial of the motion to suppress
will be affirmed, unless the case presents a novel question of law whose
resolution is necessary to guide future action. Mays, 466 F.3d at 343.



                                       2
    Case: 13-50331    Document: 00512892265     Page: 3   Date Filed: 01/07/2015


                                 No. 13-50331

      Almaguer’s argument that the affidavit underlying the search warrant
is a bare bones affidavit is unavailing. A bare bones affidavit is one that
contains wholly conclusional statements and is “so lacking in indicia of
probable cause as to render official belief in its existence entirely
unreasonable.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992)
(internal quotation marks and citation omitted). The affidavit underlying the
search warrant in this case is not wholly conclusional because it included
information about when and where the contraband was observed by a
confidential informant, it indicated that the informant had previously given
reliable information, and it indicated how the affiant was confident that the
person observed to be in possession of the contraband would be at the location
sought to be searched. See United States v. Pope, 467 F.3d 912, 920 (5th Cir.
2006).
      Almaguer’s argument that Detective Sendejo did not rely on the warrant
in good faith because he did not notice the erroneous time set forth on the
warrant is unavailing. A technical error is insufficient to invalidate a warrant.
United States v. Benavides, 854 F.2d 701, 701-02 (5th Cir. 1988). The district
court did not err in concluding that the good faith exception applied in this
case. See United States v. Leon, 468 U.S. 897, 923 (1984); Mays, 466 F.3d at
343. Consequently, the denial of the motion to suppress is affirmed.
      The appeal waiver in the plea agreement precludes an appeal from
Almaguer’s sentence. Thus, he may not raise the current sentencing issues.
See United States v. Higgins, 739 F.3d 733, 736 (5th Cir.), cert. denied, 134 S.
Ct. 2319 (2014). The challenge to the sentence is dismissed.
      AFFIRMED IN PART; DISMISSED IN PART.




                                       3
