IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50127
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME HUESCA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-98-CR-145-1
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October 21, 1999
Before POLITZ, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jaime Huesca argues that the district
court erred by denying his motion to suppress because the facts
presented at the suppression hearing show that the U.S. Border
Patrol agents did not have a reasonable suspicion to support the
stop of Huesca’s vehicle. In the context of the denial of a
motion to suppress, we review the district court’s factual
findings for clear error and the ultimate conclusion, that the
*
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that this opinion should not be published and is not precedent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.
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facts supported a reasonable suspicion sufficient to justify an
investigatory
stop, de novo. United States v. Inocencio, 40 F.3d 716, 721 (5th
Cir. 1994).
A roving Border Patrol agent may stop a vehicle if the
agent’s observations lead him reasonably to suspect that the
occupants of a particular vehicle may be involved in criminal
activity. See United States v. Brignoni-Ponce, 422 U.S. 873, 881
(1975). The factors to be taken into account in determining
whether “reasonable suspicion” exists, include: the
characteristics of the area; its proximity to the border; the
usual patterns of traffic on a particular road and previous
experience with alien traffic; information about recent illegal
border crossings; the driver’s behavior; and the vehicle’s
appearance, including the type of vehicle, appearance of being
heavily loaded, number of passengers, or passengers’ behavior.
Id. at 884-85.
Huesca’s vehicle was approximately 84 miles from the U.S.
border when it was stopped by the Border Patrol agents, and there
was no indication that Huesca had just come from the border.
However, all of the other facts articulated by the Border Patrol
agents at the suppression hearing indicate that the remaining
factors all support the existence of a reasonable suspicion to
stop Huesca’s vehicle. The district court did not err in
concluding that all of the specific facts considered together
No. 99-50127
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supported the stop. See United States v. Aldaco, 168 F.3d 148,
150 (5th Cir. 1999).
Huesca also contends that, although he granted his consent
for the agents to search his vehicle, this consent was not
voluntarily given. This is an issue of fact that Huesca has
raised for the first time on appeal. See United States v.
Cooper, 43 F.3d 140, 144 (5th Cir. 1995)(voluntariness of consent
is a question of fact). An issue of fact capable of resolution
by the district court can never constitute plain error. See
United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991). This
issue is therefore foreclosed on appeal.
Consideration of this issue is alternatively precluded on
appeal because Huesca failed to argue this issue in his motions
to suppress and waived his right to appeal all issues except for
those raised in his motions to suppress. See United States v.
Melancon, 972 F.2d 566, 568 (5th Cir. 1992)(defendant may waive
his statutory right to appeal in a valid plea agreement if the
waiver is knowing and voluntary).
AFFIRMED.