     Case: 09-40828     Document: 00511250880          Page: 1    Date Filed: 10/01/2010




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

                                                 FILED
                                                                           October 1, 2010
                                     No. 09-40828
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ALBERTO MATA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:07-CR-1435-1


Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
        Alberto Mata appeals his conditional guilty plea conviction and sentence
for possession with intent to distribute more than 100 kilograms of marijuana.
As part of his plea agreement, Mata specifically reserved the right to appeal the
denial of his motion to suppress approximately 155 pounds of marijuana that
was seized from inside a nearby house. On appeal, Mata argues that there were
no exigent circumstances justifying the warrantless entry of the house and that
there was no evidence of danger to justify a protective sweep of the interior. He

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40828   Document: 00511250880 Page: 2        Date Filed: 10/01/2010
                                No. 09-40828

also argues that the inclusion of the marijuana found inside the house
significantly increased his statutory sentencing exposure.
      Whether exigent circumstances existed is a factual finding reviewed for
clear error. United States v. Maldonado, 472 F.3d 388, 392 (5th Cir. 2006). In
evaluating exigent circumstances, we consider “the appearance of the scene of
the search in the circumstances presented as it would appear to reasonable and
prudent men standing in the shoes of the officers.” United States v. Rodea,
102 F.3d 1401, 1405 (5th Cir. 1996). When reasonable minds may disagree, we
will “not second guess the judgment of experienced law enforcement officers
concerning the risks of a particular situation.” United States v. Menchaca-
Castruita, 587 F.3d 283, 290 (5th Cir. 2009) (internal quotation marks and
citation omitted). We conclude that the district court did not clearly err in
finding the existence of exigent circumstances based on the risk of destruction
of evidence inside the house and the need to protect the agents and others from
persons who might be hiding inside. We also conclude that the district court did
not clearly err in finding that agents had a “reasonable, articulable suspicion”
that a person posing a danger to the agents might be inside and that this
suspicion justified a protective sweep of the premises. See United States v. Mata,
517 F.3d 279, 286 (5th Cir. 2008).
      Mata’s sentencing argument is premised on his primary argument that the
district court erred by denying his motion to suppress. Because we find that the
district court did not err in denying his motion to suppress, the marijuana found
inside the house was properly considered in determining Mata’s sentence.
      AFFIRMED.




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