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United States v. Andres Sanchez , 585 F. App'x 304 ( 2014 )


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  •      Case: 13-51176      Document: 00512853013         Page: 1    Date Filed: 12/01/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-51176                         December 1, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANDRES SANCHEZ, also known as El Diablo, also known as Archibalado
Rodriguez, Jr., also known as Archie Rodriguez, Jr., also known as Archi
Rodriguez, also known as Archibald Rodriguez, also known as Archiebaldo
Rodriguez, also known as Andres Javier Sanchez, also known as Andy
Sanchez,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:13-CR-276-1
Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
Andres Sanchez appeals from his conditional guilty plea conviction for
possession of a firearm by a convicted felon; the plea was conditioned upon
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51176    Document: 00512853013     Page: 2   Date Filed: 12/01/2014
No. 13-51176
Sanchez’s reservation of his right to appeal the district court’s denial of his
motion to suppress.
Voluntary consent is an exception to the Fourth Amendment’s warrant
requirement. United States v. Tompkins,
    130 F.3d 117
    , 121 (5th Cir. 1997).
“In order to satisfy the consent exception, the government must demonstrate
that there was (1) effective consent, (2) given voluntarily, (3) by a party with
actual or apparent authority.” United States v. Scroggins,
    599 F.3d 433
    , 440
(5th Cir. 2010).
We review for clear error both the district court’s finding that Sanchez
gave effective consent to the search, see
    id.,
     and its finding that his consent
was given voluntarily. See United States v. Solis,
    299 F.3d 420
    , 436 (5th Cir.
2002). “A finding is clearly erroneous only if the court is left with a definite
and firm conviction that a mistake has been committed.” Scroggins,
    599 F.3d at 440
    . “The clearly erroneous standard is particularly deferential where
denial of the suppression motion is based on live oral testimony . . . because
the judge had the opportunity to observe the demeanor of the witnesses.”
    Id.
    (internal quotation marks and citation omitted).
We have recognized six factors relevant to determining voluntariness,
none of which is controlling or dispositive:
(1) the voluntariness of the defendant’s custodial status; (2) the
presence of coercive police procedures; (3) the extent and level of
the defendant’s cooperation with the police; (4) the defendant’s
awareness of his right to refuse to consent; (5) the defendant’s
education and intelligence; and (6) the defendant’s belief that no
incriminating evidence will be found.
United States v. Olivier-Becerril,
    861 F.2d 424
    , 426 (5th Cir. 1988) (internal
quotation marks and citations omitted).
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Case: 13-51176    Document: 00512853013     Page: 3   Date Filed: 12/01/2014
No. 13-51176
At the suppression hearing the district court heard the live testimony of
four officers. As Sanchez states in his brief, Sanchez “did not call witnesses or
present any evidence at the hearing.” After the hearing, the district court
issued a written order in which it found that even though Sanchez was in
custody at the time of his consent, his consent was nevertheless voluntary
given the absence of coercion and his ready cooperation with law enforcement.
Although Sanchez was not advised of his right to refuse consent, the district
court suggested that Sanchez’s lengthy criminal history made it likely that he
was aware of this right.
Ultimately, we are not “left with a definite and firm conviction that a
mistake has been committed.” Scroggins,
    599 F.3d at 440
    ; see Olivier-Becerril,
    861 F.2d at 426
    . Because the district court did not clearly err by holding that
Sanchez voluntarily consented to the search, we need not consider his
remaining arguments regarding the lack of probable cause and the
inapplicability of the automobile and inventory exceptions.
AFFIRMED.
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