UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4625
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO ROMERO-PINA, a/k/a Don Beto,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. William L. Osteen,
District Judge. (CR-04-210)
Submitted: January 11, 2006 Decided: February 2, 2006
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Aaron E. Michel, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, David A. Brown,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Francisco Romero-Pina of possession of a
firearm by a prohibited person, immigration fraud, and
identification document fraud, in violation of 18 U.S.C. §§
922(g)(5), 1546(a), and 1028(a)(1), respectively.1 The district
court sentenced Romero-Pina to a term of 42 months of imprisonment
to be followed by a two-year term of supervised release. Romero-
Pina now appeals his conviction on several grounds. Finding no
error, we affirm.
Romero-Pina first argues that the district court erred by
denying his suppression motion. Specifically, Romero-Pina sought
to suppress (1) evidence obtained during a search of the apartment
in which he and his friend resided, and (2) certain statements he
made to law enforcement. Following a suppression hearing, a
magistrate judge found that Romero-Pina and his friend voluntarily
consented to the search of their apartment. The magistrate judge
further found that Romero-Pina’s statements were “probably” made
during a non-custodial interview, and they were in any event made
after he had knowingly and voluntarily waived his Miranda rights.
On de novo review, the district court overruled Romero-Pina’s
objections and sustained these findings.2 In considering this
1
The latter two crimes also included aiding and abetting
charges under 18 U.S.C. § 2.
2
Romero-Pina also argues that the district court erred by not
requiring the government at the suppression hearing to establish
2
issue, we review the district court’s factual findings for clear
error, viewing the evidence in the light most favorable to the
government, and we review the district court’s legal conclusions de
novo. See United States v. Perkins, 363 F.3d 317, 320 (4th Cir.
2004). Applying these standards, we find that the district court
did not err by denying the suppression motion.3
Romero-Pina next argues that the district court erred by
denying his motion to enforce an alleged agreement made by a law
enforcement agent not to prosecute him. Romero-Pina bore the
burden of proving that such an agreement existed and that it was
binding on the government. See United States v. Martin, 25 F.3d
211, 217 (4th Cir. 1994) (noting burden of proof concerning plea
agreements). We review the district court’s factual determinations
concerning the existence and scope of an alleged immunity agreement
under a clearly erroneous standard, and its application of the law
beyond a reasonable doubt that he consented to the search of the
apartment and that his statements were voluntarily made. We find
this argument to be meritless. See generally United States v.
Matlock, 415 U.S. 164, 177 n.14 (1974) (noting that “the
controlling burden of proof at suppression hearings should impose
no greater burden than proof by a preponderance of the evidence”).
3
Romero-Pina also argues, alternatively, that the district
court erred under Fed. R. Evid. 403 by admitting this evidence at
trial because it is more prejudicial than probative. We find this
argument to be completely without merit. See generally United
States v. Love, 134 F.3d 595, 603 (4th Cir. 1998) (noting that
under our “broadly deferential standard” of review, we will not
upset a district court’s Rule 403 decision “except under the most
extraordinary of circumstances” (citation and internal punctuation
omitted)).
3
de novo. See id. Having carefully reviewed the record, we find
that the district court did not err in denying this motion.
Romero-Pina also argues that the district court erred by
denying his Second Amendment challenge to § 922(g)(5). We have
reviewed this constitutional issue de novo, see United States v.
Bostic, 168 F.3d 718, 721 (4th Cir. 1999), and find that Romero-
Pina’s argument is foreclosed by our decision in United States v.
Johnson, 497 F.2d 548, 550 (4th Cir. 1974), in which we rejected a
similar Second Amendment challenge to § 922(g).
Finally, Romero-Pina argues that the district court erred by
declining to give his proposed jury instruction concerning the
interstate commerce element for the § 922(g)(5) charge. We review
de novo the correctness of jury charges regarding the elements of
an offense. United States v. Horton, 321 F.3d 476, 479 (4th Cir.
2003). Because the district court’s instruction properly comports
with our circuit precedent, see, e.g., United States v. Quarles,
330 F.3d 650, 651 n.1 (4th Cir. 2003) (rejecting a similar
argument),4 we find that the district court did not err by
declining to give Romero-Pina’s requested instruction.
4
For the same reason, we also reject Romero-Pina’s contention
that the evidence concerning the interstate commerce element is
insufficient to sustain the verdict on the § 922(g)(5) charge.
4
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
5