     Case: 10-50556     Document: 00511549521         Page: 1     Date Filed: 07/25/2011




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

                                                                            FILED
                                                                            July 25, 2011
                                     No. 10-50556
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HERIBERTO MARIN-HIPOLITO, also known as Marin Hipolito-Heriberto,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:99-CR-1338-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Heriberto Marin-Hipolito pleaded guilty to possessing with intent to
distribute 100 kilograms or more of marijuana and was sentenced to 63 months
of imprisonment and five years of supervised release. He appeals the district
court’s denial of his motion to suppress evidence and statements obtained as the
result of the search of a van on his property.
        This court reviews the denial of a motion to suppress in the light most
favorable to the prevailing party, reviewing findings of fact for clear error and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50556    Document: 00511549521      Page: 2    Date Filed: 07/25/2011

                                  No. 10-50556

questions of law de novo. United States v. Garcia, 604 F.3d 186, 189-90 (5th
Cir.), cert. denied, 131 S. Ct. 291 (2010). Our review of factual findings is
particularly deferential when the suppression motion is based on live testimony.
United States v. Scroggins, 599 F.3d 433, 440 (5th Cir.), cert. denied, 131 S. Ct.
158 (2010).
      There was no error in the district court’s denial of Marin-Hipolito’s motion
to suppress. There was testimony at the suppression hearing that, among other
things, Marin-Hipolito verbally consented to the search of the van, cooperated
with the police and gave them the van keys, was not formally arrested or
restrained, knew he had the right to refuse consent, and knew the reason the
police wanted to conduct a search. Although there was conflicting testimony at
the suppression hearing regarding the timing and scope of consent, we defer to
the district court’s credibility determinations and factual findings.
      The legal conclusion that the scope of consent included the van was not
erroneous given the circumstances. See United States v. Mendez, 431 F.3d 420,
426-27 (5th Cir. 2005). In addition, in light of the testimony, the district court’s
finding that Marin-Hipolito voluntarily consented to the search was not clearly
erroneous. See id. at 429-30. The judgment of the district court is AFFIRMED.




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