United States v. Orlando Rojano , 546 F. App'x 375 ( 2013 )

Case: 12-60009 Document: 00512215721 Page: 1 Date Filed: 04/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 22, 2013
No. 12-60009
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ORLANDO QUINTANA ROJANO; JUAN CARRASCO-SANCHEZ,
Defendants-Appellants
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 5:11-CR-1-2
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Orlando Quintana Rojano (Quintana) and Juan Carrasco-Sanchez
(Carrasco) appeal from their convictions of possession of 15 or more counterfeit
access devices. Quintana argues that the district court erred by denying the
defendants’ motion to suppress fraudulent credit cards found in their rented van
because (1) although Vicksburg Police Department Officer Leonce Young was
justified in stopping the van for speeding, he lacked reasonable suspicion to
extend the stop beyond the time necessary to write Carrasco a speeding ticket
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-60009
and (2) the defendants’ consent to search the van was not voluntary. Carrasco
argues that the district court erred by admitting pursuant to Federal Rule of
Evidence 404(b) evidence of (1) an additional fraudulent credit card in Carrasco’s
name that was also found in the van but which did not form the basis of any
charge and (2) Carrasco’s 2010 conviction for fraudulent use of a credit card.
When reviewing the denial of a motion to suppress evidence, this court
reviews factual findings, including whether a consent to search was voluntary,
for clear error and the ultimate constitutionality of law enforcement action de
novo. United States v. Pack, 612 F.3d 341, 347 (5th Cir.), modified, 622 F.3d 383(5th Cir. 2010); United States v. Solis, 299 F.3d 420, 436 (5th Cir. 2002).
“Factual findings are clearly erroneous only if a review of the record leaves this
[c]ourt with a definite and firm conviction that a mistake has been committed.”
United States v. Hearn, 563 F.3d 95, 101 (5th Cir. 2009) (internal quotation
marks and citation omitted).
The district court did not err in holding that Officer Young did not
impermissibly extend the stop in light of (1) the reasonable suspicion raised by
the significant discrepancies between (a) the vehicle described in the rental
contract and the defendants’ van and (b) the defendants’ statements regarding
how long they had known one another, (2) the brevity of the detention, which
lasted only between five and seven minutes before the defendants consented to
the search, and (3) the reasonable scope of Young’s additional investigatory
questions. See Pack, 612 F.3d at 358.
This court has recognized six factors relevant to determining
voluntariness, none of which alone is 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.
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No. 12-60009
United States v. Shabazz, 993 F.2d 431, 438 (5th Cir. 1993) (internal quotation
marks and citations omitted). Despite that Young retained Carrasco and
Quintana’s driver’s licenses and the rental agreement, and despite that Young
did not affirmatively inform them of their right to refuse consent, we conclude
that the district court did not clearly err in finding that the defendants
voluntarily consented to the search; the evidence, including Young’s testimony
and the video recording of the stop, adequately supports the district court’s
conclusions that Young did not engage in coercive tactics and that the
defendants cooperated, exhibited sufficient understanding, and believed that no
contraband would be found. See id. at 438-39; United States v. Torres-Borunda,
269 F. App’x 431, 433-34 (5th Cir. 2008).
The district court did not abuse its discretion by admitting the challenged
credit card evidence under Rule 404(b) because Carrasco placed his intent at
issue by pleading not guilty. See United States v. McCall, 553 F.3d 821, 827-28
(5th Cir. 2008). As for the admission of the 2010 conviction, “[w]e consistently
have held that evidence of a defendant’s prior conviction for a similar crime is
more probative than prejudicial,” particularly when, as here, the district court
gave a proper limiting instruction. United States v. Taylor, 210 F.3d 311, 318
(5th Cir. 2000).
AFFIRMED.
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