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United States v. Pedraza ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41381
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY CRUZ PEDRAZA,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-290-1
--------------------
June 18, 2002
Before DUHÉ, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:1
Roy Cruz Pedraza appeals his conviction for possession with
intent to distribute approximately 1098 grams of methamphetamine in
violation of
    21 U.S.C. § 841
    .     He argues that the district court
erred in denying his motion to suppress evidence seized following
a pat-down search during questioning on a bus.     He argues that the
officer did not advise him that he could refuse to consent to the
search and that he did not feel free to refuse the officer’s
1
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that this opinion should not be published and is not precedent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.
requests.    The district court did not clearly err in finding that
Pedraza voluntarily consented to the pat-down search.          See Florida
v. Bostick,
    501 U.S. 429
    , 435 (1991); see also United States v.
Cooper,
    43 F.3d 140
    , 146 & n.4 (5th Cir. 1995); United States v.
Galberth,
    846 F.2d 983
    , 988-89 (5th Cir. 1988). The district court
found that Pedraza’s motive for consenting to the search was to
avoid suspicion; the restriction of movement was self-imposed
because Pedraza chose to travel by bus; Officer Ramiro Martinez did
not act in an intimidating manner; Pedraza was not under arrest at
any time until after Officer Martinez discovered the narcotics; and
a reasonable person similarly situated would have felt that he had
the right to refuse to consent.           Pedraza has not shown that the
district court erred in denying his motion to suppress the evidence
seized during the pat-down search.
Pedraza also argues that
    21 U.S.C. § 841
     is unconstitutional
in view of Apprendi v. New Jersey,
    530 U.S. 466
     (2000).                 He
concedes    that   this   argument   is    foreclosed   by   this   court’s
precedent.    United States v. Fort,
    248 F.3d 475
    , 482 (5th Cir.),
cert. denied,
    122 S. Ct. 405
     (2001); United States v. Slaughter,
    238 F.3d 580
    , 582 (5th Cir. 2000), cert. denied,
    532 U.S. 1045
    (2001). This court is bound by its precedent absent an intervening
Supreme Court decision or a subsequent en banc decision.               See
United States v. Short,
    181 F.3d 620
    , 624 (5th Cir. 1999).
AFFIRMED.
2