United States v. Carlos Jacobo , 433 F. App'x 310 ( 2011 )


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  •      Case: 10-51034     Document: 00511548392         Page: 1     Date Filed: 07/22/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 22, 2011
    No. 10-51034
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    CARLOS DAVID JACOBO,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 4:10-CR-202-3
    Before KING, BENAVIDES, and ELROD, Circuit Judges.
    PER CURIAM:*
    Carlos David Jacobo pleaded guilty to possession with intent to distribute
    marijuana, and he was sentenced to 24 months of imprisonment and five years
    of supervised release.
    Jacobo argues on appeal that the district court erred in denying his motion
    to suppress evidence obtained as a result of his detention and arrest after a
    traffic stop based on his violation of a Texas statute prohibiting driving on the
    shoulder of a road, with certain exceptions. He contends that the stop was
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51034    Document: 00511548392       Page: 2    Date Filed: 07/22/2011
    No. 10-51034
    unconstitutional under Terry v. Ohio, 
    392 U.S. 1
     (1968), because there was little
    credible evidence of the violation other than the testimony at the suppression
    hearing of the officer initiating the traffic stop, and he further asserts without
    providing any evidence or argument in support of his assertion that “even if he
    momentarily swerved across the line, which he denies, he by no means ‘drove’
    on the shoulder.” Jacobo also argues that the officer’s additional testimony
    concerning marijuana seizures and the presence of illegal aliens in the area did
    not justify the traffic stop and that the officer intended to pull him over even
    before the alleged traffic violation occurred.
    The district court determined that the officer’s testimony that Jacobo had
    driven on the shoulder of the road in violation of the Texas Transportation Code
    was credible, and Jacobo’s mere assertion without any supporting evidence that
    he did not in fact swerve across the line on the shoulder does not demonstrate
    that the district court’s finding that a traffic violation occurred was not plausible
    in light of the record as a whole. See United States v. Gomez, 
    623 F.3d 265
    , 268
    (5th Cir. 2010); TEX. TRANSP. CODE ANN . § 545.058(a) (Vernon 1999). The
    existence of a traffic violation justified the stop of Jacobo’s vehicle, regardless of
    whether the officer had another motive for the stop. See Whren v. United States,
    
    517 U.S. 806
    , 810, 813 (1996). Accordingly, Jacobo has not shown that the
    district court erred in denying his motion to suppress. See United States v.
    Navarro, 
    169 F.3d 228
    , 231 (5th Cir. 1999).
    AFFIRMED.
    2
    

Document Info

Docket Number: 10-51034

Citation Numbers: 433 F. App'x 310

Judges: Benavides, Elrod, King, Per Curiam

Filed Date: 7/22/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023