USA v. Alberto Mata

Filing

UNPUBLISHED OPINION FILED. [09-40828 Affirmed ] Judge: EHJ , Judge: JES , Judge: EBC Mandate pull date is 10/22/2010 for Appellant Alberto Mata [09-40828]

USA v. Alberto Mata

Doc. 0

Case: 09-40828

Document: 00511250880

Page: 1

Date Filed: 10/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40828 S u m m a r y Calendar October 1, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A L B E R T O MATA, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:07-CR-1435-1

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* A lb e r t o Mata appeals his conditional guilty plea conviction and sentence fo r 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 d e n ia l of his motion to suppress approximately 155 pounds of marijuana that w a s seized from inside a nearby house. On appeal, Mata argues that there were n o exigent circumstances justifying the warrantless entry of the house and that t h e r e 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Dockets.Justia.com

Case: 09-40828

Document: 00511250880 Page: 2 No. 09-40828

Date Filed: 10/01/2010

a ls o argues that the inclusion of the marijuana found inside the house s ig n ific a n t ly increased his statutory sentencing exposure. Whether exigent circumstances existed is a factual finding reviewed for c le a r error. United States v. Maldonado, 472 F.3d 388, 392 (5th Cir. 2006). In e v a lu a tin g exigent circumstances, we consider "the appearance of the scene of t h e search in the circumstances presented as it would appear to reasonable and p r u d e n t men standing in the shoes of the officers." United States v. Rodea, 1 0 2 F.3d 1401, 1405 (5th Cir. 1996). When reasonable minds may disagree, we w ill "not second guess the judgment of experienced law enforcement officers c o n c e r n in g the risks of a particular situation." United States v. MenchacaC a s tr u ita , 587 F.3d 283, 290 (5th Cir. 2009) (internal quotation marks and c it a t io n omitted). We conclude that the district court did not clearly err in fin d in g the existence of exigent circumstances based on the risk of destruction o f evidence inside the house and the need to protect the agents and others from p e r s o n s who might be hiding inside. We also conclude that the district court did n o t clearly err in finding that agents had a "reasonable, articulable suspicion" t h a t a person posing a danger to the agents might be inside and that this s u s p ic io n justified a protective sweep of the premises. See United States v. Mata, 5 1 7 F.3d 279, 286 (5th Cir. 2008). M a t a 's sentencing argument is premised on his primary argument that the d is t r ic t court erred by denying his motion to suppress. Because we find that the d is t r ic t court did not err in denying his motion to suppress, the marijuana found in s id e the house was properly considered in determining Mata's sentence. AFFIRMED.

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