USA v. Jose Cienfuegos-Pompa

Filing 511138631

USA v. Jose Cienfuegos-Pompa

Doc. 511138631

Case: 09-50948

Document: 00511138631

Page: 1

Date Filed: 06/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50948 S u m m a ry Calendar June 10, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in tif f - A p p e lle e v. J O S E BOLIVAR CIENFUEGOS-POMPA, also known as Jose P. Cienfuegos, 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 Western District of Texas U S D C No. 6:09-CR-86-1

B e fo re KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* J o s e Bolivar Cienfuegos-Pompa (Cienfuegos) pleaded guilty to a superseding in fo rm a tio n charging that he was an illegal alien in possession of at least one of six e n u m e ra te d firearms. Cienfuegos preserved his right to appeal the district court's denial of h is suppression motion. He now argues that the district court clearly erred in denying the m o tio n with respect to the firearms that were seized without a warrant on April 15, 2009. He argues that his surrender of the firearms was not the result of free and voluntary consent. "In reviewing the denial of a motion to suppress, the district court's factual findings a re reviewed for clear error, and its legal conclusions . . . are reviewed de novo." United

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-50948

Document: 00511138631 Page: 2 No. 09-50948

Date Filed: 06/10/2010

S ta te s v. Jacquinot, 258 F.3d 423, 427 (5th Cir. 2001). Voluntariness of consent is a finding o f fact reviewed for clear error. United States v. Arias-Robles, 477 F.3d 245, 248 (5th Cir. 2 0 0 7 ). When, as here, the district court's finding of consent is based on oral testimony at a s u p p re s s io n hearing, the clear error standard is particularly strong because the district court h a d the opportunity to observe the demeanor of the witnesses. See United States v. Gonzales, 7 9 F.3d 413, 421 (5th Cir. 1996). A search pursuant to consent is a well-established exception to the Fourth Amendment re q u ire m e n t of a warrant. United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). Where an appellant challenges the voluntariness of consent to a search, the Government must p ro v e that consent was freely and voluntarily given by a preponderance of the evidence. United States v. Santiago, 410 F.3d 193, 198-99 (5th Cir. 2005). That burden is not satisfied b y a mere submission to a claim of lawful authority. United States v. Villareal, 963 F.2d 7 7 0 , 777 (5th Cir. 1992). In evaluating the voluntariness of consent, the examining court s h o u ld consider "(1) the voluntariness of the defendant's custodial status; (2) the presence o f coercive police procedures; (3) the extent and level of the defendant's cooperation with p o lic e ; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's e d u c a tio n and intelligence; and (6) the defendant's belief that no incriminating evidence will b e found." United States v. Jenson, 462 F.3d 399, 406 (5th Cir. 2006). All six factors are re le v a n t; however, no one is dispositive. Arias-Robles, 477 F.3d at 248. On appeal, Cienfuegos challenges the district court's findings with respect to a lack o f coercion. He argues that his actions amounted to no more than a mere submission to a c la im of lawful authority. Warden Bernstein testified at the suppression hearing that he

c o n s id e re d his actions to be a "knock and talk" and that he "basically asked [Cienfuegos] if h e would mind getting the weapons" for him. Bernstein's testimony thus supports the district c o u rt's finding of a lack of coercion. Moreover, "[t]he mere failure of the officers to give a n encyclopedic catalogue of everything they might be interested in does not alone render t h e search involuntary." United States v. Davis, 749 F.2d 292, 295 (5th Cir. 1985). Although Cienfuegos may have assumed that Warden Bernstein's inquiry related only to his e a rlie r hunting violations, there is no evidence in the record to support the conclusion that W a rd e n Bernstein intentionally misrepresented his purpose for requesting to see the firearms. 2

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Document: 00511138631 Page: 3 No. 09-50948

Date Filed: 06/10/2010

C ie n fu e g o s did not provide any such testimony; nor does the cross-examination of the G o v e rn m e n t's witnesses reveal such a ruse. Cienfuegos has not shown that the district court clearly erred in determining that c o n s e n t for the search was voluntarily given. Accordingly, the judgment is AFFIRMED. See Arias-Robles, 477 F.3d at 248.

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