                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4455


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSE DELORES VANEGAS, a/k/a Chivito,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 14-5936)


Submitted:   April 28, 2015                   Decided:   May 19, 2015


Before DUNCAN, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph R. Pope, WILLIAMS MULLEN, Richmond, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Richard D.
Cooke, Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      This case is before us on remand from the United States

Supreme Court for further consideration in light of Riley v.

California, 573 U.S.             , 134 S. Ct. 2473 (2014).                    In United

States v. Vanegas, 560 F. App’x 191 (4th Cir.) (No. 13-4455),

vacated,         U.S.        , 135 S. Ct. 377 (2014), we affirmed Jose

Delores      Vanegas’   convictions      for     conspiracy      to           distribute

cocaine, 21 U.S.C. § 846 (2012), and possession of a firearm in

furtherance of a drug trafficking offense, 18 U.S.C. § 924(c)

(2012).      After reviewing Vanegas’ appeal in light of Riley, we

affirm. *

      In     Riley,   the    Supreme    Court    held     that       a    warrant     is

generally required prior to a search of a cell phone.                             Riley,

134 S. Ct. 2493.            This is true even when the cell phone is

seized incident to arrest.            Vanegas contends that the search of

his   cell    phone   incident   to    arrest    and    the    use       of    the   text

messages       retrieved      from     the      phone’s       data        cards       was

unconstitutional in light of Riley.              The Government asserts that

Vanegas waived his Fourth Amendment challenge by failing to file

a pretrial motion to suppress.

      *
        In the prior appeal, Vanegas challenged the jury
instructions and the sufficiency of the evidence regarding the
firearm charge.   We reinstate our prior opinion affirming his
conviction. See Vanegas, 560 F. App’x at 192-94.




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       Rule 12 of the Federal Rules of Criminal Procedure requires

that a motion to suppress be filed either before trial or by the

deadline established by the district court.                               Fed. R. Crim. P.

12(b)(3)(C), 12(c)(1).                  If the defendant fails to timely file

such   a   motion,         he    has   waived       his     Fourth    Amendment     challenge

unless the court finds “good cause” for the delay.                                      Fed. R.

Crim. P. 12(c)(3); see United States v. Moore, 769 F.3d 264,

267–68 (4th Cir. 2014) (affirming district court’s determination

that untimely motion to suppress was waived), cert. denied, 135

S. Ct. 1463 (2015); United States v. Sweat, 573 F. App'x 292,

295    (4th    Cir.)       (No.      13-4703)       (noting        that   “we   rarely     grant

relief     from      the    denial      of     an       untimely    suppression     motion”),

cert. denied, 135 S. Ct. 157 (2014).

       Vanegas       did     not     move    to     suppress       evidence     prior    to    his

trial.     During the sentencing hearing, Vanegas asserted that his

conviction was the result of an unconstitutional search.                                       The

district court responded that it had looked carefully at the

evidence       and    did       not     find      that      any     illegal     evidence       was

presented during the trial.                       When Vanegas referenced his cell

phone,     the       court      responded         that      the     wiretap     evidence      was

properly obtained and was authorized by a search warrant.                                     When

Vanegas       attempted         to    clarify       that    his     challenge    was     to    the

search of the contents of his cell phone and data cards, the

court noted his objection and continued with sentencing.

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     We conclude that Vanegas did not timely present his Fourth

Amendment challenge to the district court and therefore waived

this issue.    See Fed. R. Civ. P. 12(b)(3)(C); Moore, 769 F.3d at

267–68.     Also, despite Vanegas’ assertion to the contrary, the

district court’s statements at sentencing did not amount to a

finding of good cause to excuse the waiver.             Id.

     Having determined that Vanegas waived his Fourth Amendment

challenge to the search of his cell phone and data cards, we

conclude that the Supreme Court’s ruling in Riley, 134 S. Ct.

2493,   does   not    affect    the    validity   of    Vanegas’    conviction.

Accordingly, we affirm.         We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials    before   this     court   and   argument    would     not   aid   the

decisional process.

                                                                         AFFIRMED




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