United States v. Orona , 166 F. App'x 765 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 15, 2006
Charles R. Fulbruge III
Clerk
No. 05-50217
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO ORONA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CR-198-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Armando Orona appeals his conviction and sentence for
transporting child pornography by computer, receipt of child
pornography by computer, and possessing a hard drive containing
child pornography in violation of 18 U.S.C. §§ 2252(a)(1) and
(a)(4)(B). Orona argues that the district court erred in denying
his motion to suppress the evidence, the computer containing the
images of child pornography, seized from his automobile. When
reviewing the denial of a motion to suppress, this court
*
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this opinion should not be published and is not precedent except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.
No. 05-50217
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generally reviews factual findings for clear error and the trial
court’s conclusions as to the constitutionality of law
enforcement action and the sufficiency of a warrant de novo.
United States v. Cherna, 184 F.3d 403, 406 (5th Cir. 1999).
In this case, it is not necessary to address the arguments
regarding the validity of the warrant or the good-faith exception
because a search may be upheld on the ground that a search
without a warrant would have been supported by probable cause.
United States v. Clark, 559 F.2d 420, 426 (5th Cir. 1977);
Coolidge v. New Hampshire, 403 U.S. 443 (1971). “The automobile
exception to the Fourth Amendment’s warrant requirement permits
authorities to search a vehicle when they have probable cause to
believe it contains contraband.” United States v. Saucedo-Munoz,
307 F.3d 344, 351 (5th Cir. 2002) (quoting Maryland v. Dyson,
527 U.S. 465, 466-67 (1999)). Although Orona does not make the
specific argument, exigent circumstances are also required to
justify a warrantless search of a vehicle when the vehicle is
parked in the driveway of a residence. See Coolidge, 403 U.S. at
461-62; United States v. Reed, 26 F.3d 523, 530 (5th Cir. 1994).
In this case, Orona was not in custody at the time of the
search of the Mazda. As found by the district court, the engine
of the Mazda was running at the time of the search. Orona does
not dispute that he had been seen by the deputies loading the
computer into the vehicle. Orona cites Chambers v. Maroney, 399
U.S. 42 (1970), for the proposition that the agents could have
No. 05-50217
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either searched the car immediately or sought a warrant, but not
both, but “[t]here is no constitutional difference between
‘seizing and holding a car before presenting the probable cause
to a magistrate and on the other hand carrying out an immediate
search without a warrant.’” United States v. Sinisterra, 77 F.3d
101, 104 (5th Cir. 1996)(quoting Chambers, 399 U.S. at 52). The
totality of the circumstances justified the warrantless search of
the vehicle. See Sinisterra, 77 F.3d at 104-05. The denial of
the motion to suppress was not error.
Orona argues that the district court violated the Sixth
Amendment by increasing his offense level for obstruction of
justice because the jury made no finding on the issue in
violation of United States v. Booker, 125 S. Ct. 738 (2005).
This argument is based on the implicit assertion that he was
sentenced under a mandatory guidelines scheme. Orona was
sentenced after Booker was decided, and the record shows that the
district court did not treat the guidelines as mandatory. Orona
has not shown that the sentence imposed was not reasonable. See
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005).
AFFIRMED.