USA v. Saul Ronquillo

Filing

UNPUBLISHED OPINION FILED. [10-10025 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/13/2010 for Appellant Saul Ronquillo; denying motion to supplement the record on appeal filed by Appellee USA [6560222-2] [10-10025]

USA v. Saul Ronquilloase: 10-10025 C

Document: 00511301715 Page: 1 Date Filed: 11/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10025 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. S A U L RONQUILLO, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:09-CR-44-1

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* S a u l Ronquillo was convicted by a jury of being a felon in possession of a fir e a r m . He was sentenced to 120 months of imprisonment and to a three-year t e r m of supervised release. Ronquillo contends that the district court abused its d is c r e t io n in allowing prior-crime evidence under Fed. R. Evid. 404(b) because t h e evidence was seized as the result of an illegal search and seizure, as e v id e n c e d by the state prosecutor's nolle prosequi order. The Government

c o n t e n d s that the district court did not abuse its discretion in admitting the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10025 Document: 00511301715 Page: 2 Date Filed: 11/22/2010 No. 10-10025 e v id e n c e because testimony at trial demonstrated that no Fourth Amendment v io la t io n occurred in the seizing of the evidence. The Government has also filed a motion to supplement the record on appeal. T h is court reviews a district court's admission of 404(b) evidence under a h e ig h t e n e d abuse of discretion standard, subject to harmless error analysis. United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007). The 404(b) evidence R o n q u illo challenges is evidence seized as a result of his vehicle being im p o u n d e d and searched on August 29, 2008, in Hobbs, New Mexico. Testimony fr o m the arresting officer revealed that, per department policy, Ronquillo's v e h ic le was impounded due to plates expired more than 31 days. Also, per d e p a r t m e n t policy, an inventory search was conducted and resulted in a Crown R o y a l bag containing a stolen firearm being discovered, evidence very similar to t h a t discovered in the instant case. In light of the unchallenged testimony of the a r r e s t in g officer presented to the district court, the inventory search did not v io la t e the Fourth Amendment. See United States v. Lage, 183 F.3d 374, 381 (5 t h Cir. 1999). The nolle prosequi order from the state prosecutor does not r e b u t the officer's testimony because the order does not indicate whether there w a s a constitutional violation. See United States v. Eastland, 989 F.2d 760, 7656 6 (5th Cir. 1993). Accordingly, the district court did not abuse its discretion in a d m it t in g the 404(b) evidence. R o n q u illo further argues that the district court erred in denying his m o t io n to dismiss the indictment because it failed to allege that the firearm had a substantial effect on interstate commerce; failed to allege that he knew he was a convicted felon; and failed to allege that he knew the gun had traveled in in t e r s t a t e commerce. Ronquillo acknowledges that his arguments are foreclosed b y this court's precedent but raises the arguments to preserve them for further r e v ie w . The arguments are rejected, as Ronquillo expected, The judgment of the district court is AFFIRMED. The Government's m o t io n to supplement the record on appeal is DENIED. 2