US v. Jose Vanega

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cr-00255-LO-6 Copies to all parties and the district court/agency. [999585716]. Mailed to: Jose Vanegas. [13-4455]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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,
Delores

U.S.
Vanegas’

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

generally required prior to a search of a cell phone.
134 S. Ct. 2493.

cell

messages

phone

incident

retrieved

Riley,

This is true even when the cell phone is

seized incident to arrest.
his

is

Vanegas contends that the search of
to

from

arrest
the

unconstitutional in light of Riley.

and

the

phone’s

use
data

of

the

text

cards

was

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

waived

a

motion,

he

has

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

relief

Cir.)

from

(No.

the

13-4703)

denial

of

(noting

an

untimely

that

“we

rarely

suppression

grant

motion”),

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

did

not

move

to

suppress

evidence

prior

to

his

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,

that

the

court

responded

the

wiretap

evidence

properly obtained and was authorized by a search warrant.
Vanegas

attempted

to

clarify

that

his

challenge

was

to

was
When
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.
267–68.

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

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

Accordingly, we affirm.

the

validity

of

Vanegas’

conviction.

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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