USA v. Heriberto Marin-Hipolito


UNPUBLISHED OPINION FILED. [10-50556 Affirmed ] Judge: PEH , Judge: WED , Judge: JWE Mandate pull date is 08/15/2011 for Appellant Heriberto Marin-Hipolito [10-50556]

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Case: 10-50556 Document: 00511549521 Page: 1 Date Filed: 07/25/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-50556 Summary Calendar July 25, 2011 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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