United States v. Mendoza-Gonzalez

Revised May 15, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_________________________

No. 01-50510
_________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

JOSE GERARDO MENDOZA-GONZALEZ,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court
for the Western District of Texas
______________________________________________

January 10, 2003

Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

I. Background

On May 8, 1998, Jose Gerardo Mendoza-Gonzalez (“Mendoza”),

the appellant, drove up to a permanent immigration checkpoint

along Interstate 10, approximately four miles west of Sierra

Blanca, Texas. United States Border Patrol Agent Reynaldo Ramos

(“Ramos”) was on duty checking the citizenship of the occupants

of the vehicles passing through. Three days prior, over twenty

illegal aliens had been found inside a truck bearing the logo

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“Mesilla Valley Transportation” at another checkpoint in the same

sector. Ramos had been instructed to be on the look-out for

similar trucks. As Mendoza approached the checkpoint, Ramos

noticed the Mesilla Valley name on the exterior of the truck.

Ramos stopped Mendoza, and asked him a series of brief

questions regarding his citizenship and cargo. Mendoza replied

that he was a resident of the United States, a citizen of Mexico,

and was hauling cheese. Although he spoke coherently in English,

his voice was shaky and he did not look at Ramos throughout the

questioning. Mendoza’s nervous demeanor and suspicious vehicle

prompted Ramos to ask if he could “take a look in the back” of

the trailer. Mendoza replied, “Okay,” and pulled into the

secondary inspection area.

At the secondary inspection area, Agent Leonardo Lopez

(“Lopez”), a ten-year veteran of the Border Patrol, emerged from

inside the checkpoint as Mendoza stepped down from his truck.

Lopez examined Mendoza’s bill of lading1 and inquired as to his

citizenship and cargo.2 Mendoza responded that he was a resident

alien and that he was transporting cheese. Lopez than asked if

he could “take a look” inside the trailer. Mendoza assented and

1
A bill of lading is “a receipt given by a carrier for goods accepted for
transportation.” Random House College Dictionary 134 (1980).
2
At oral argument, defense counsel questioned the consistency of Lopez’s
testimony regarding his encounter with Mendoza. On direct examination, Lopez
only described the portion of the conversation where he asked Mendoza for
consent. He provided a more detailed version of their encounter on cross
examination, at defense counsel’s request. We find the two versions entirely
consistent, and the district court implicitly found Lopez credible. We
therefore rely upon his entire testimony.

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opened the rear doors. As Mendoza latched the doors to the side

of the truck, Lopez asked if him if he had any passengers.

Mendoza said, “No.” Lopez then requested permission to look

inside of the cab of the truck. Mendoza said, “Sure. Go ahead.”

After checking the cab, Lopez returned to the rear of the trailer

and climbed inside.

An array of mostly white boxes were inside the trailer.3

The white boxes were “mummified” with cellophane wrapping and lay

on top of pallets. On top of the white boxes were a few 24" X

18" X 18" brown cardboard boxes, each with a piece of clear tape

over the top and labeled “Ryder Rental Trucks.”4 Due to their

different appearance, Lopez became suspicious of the brown boxes.

Using a pocketknife, he sliced the tape on one of the boxes and

opened it to reveal rectangular bundles wrapped in clear, grease-

stained cellophane. Lopez immediately recognized the packages to

be bricks of marijuana. He cut just enough from one of the

bricks to reveal a green, leafy substance. Ramos arrested

Mendoza as Lopez took one of the bricks inside the checkpoint for

3
The district court stated in its findings that the boxes were located in the
cab of the truck. It is evident from the record that after searching the cab,
Agent Lopez returned to the trailer, found the boxes and then executed the
search that is the subject of this appeal.
4
There was some confusion at oral argument regarding the quantity of tape over
the top of the brown cardboard boxes. In its findings, the district court
stated that the boxes “had tape on them.” At the suppression hearing, Agent
Lopez testified that the box he opened had “just a piece of Scotch tape or
just clear tape on it.” This was the only evidence the court received
regarding the manner in which the box had been closed, and Mendoza has not
disputed the agent’s testimony. The district court’s findings clearly gave
credence to Agent Lopez’s testimony, and we therefore conclude that over the
top of each box was a single piece of clear or Scotch tape.

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a field test. The field test confirmed the agents’ suspicions.

In all, Mendoza had been transporting over 150 kilograms of

marijuana.

Mendoza filed a motion before the district court to suppress

the marijuana discovered in the boxes as fruit of an illegal

search in violation of the Fourth Amendment. The court conducted

a pre-trial hearing, and denied the motion. Subsequently, the

court held a bench trial and convicted Mendoza of knowingly

possessing marijuana with intent to distribute, in violation of

21 U.S.C. § 841(a)(1) (1999). He was originally sentenced to a

prison term of 96 months, followed by four years of supervised

release. After the parties filed their briefs with this court,

at the behest of the Government the district court reduced

Mendoza’s sentence to 30 months in prison. The court did not

alter the term of supervised release. We granted Mendoza’s

motion to supplement the record with the district court’s amended

sentence.

II. Motion to Suppress

Mendoza appeals the district court’s denial of his motion to

suppress. It is well established that Border Patrol agents

stationed at a permanent checkpoint site may stop a vehicle,

question its occupants about citizenship, and conduct a visual

inspection of the vehicle without any individualized suspicion

that the car or its occupants are involved in criminal activity.

United States v. Martinez-Fuerte, 428 U.S. 543, 556-62, 96 S.Ct.

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3074, 49 L.Ed.2d 1116 (1976).

The Fourth Amendment, however, prohibits a search of the

vehicle in the absence of a warrant, with only two exceptions.

United States v. Ross, 456 U.S. 798, 809, 102 S. Ct. 2157, 72 L.

Ed. 2d 572 (1982); Schneckloth v. Bustamonte, 412 U.S. 218, 219,

93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The agents must have

either the consent of the owner to conduct the search or probable

cause to believe that the vehicle contains contraband or other

evidence of a crime. Id. The appellant argues that the

district court erred in denying his motion to suppress because

there was neither probable cause nor consent to open the boxes

found in the trailer of his truck. Because we find that the

search fell within the scope of Mendoza’s consent, we affirm the

district court’s ruling and do not address whether the agents

conducted the search with probable cause.

A. Standard of Review

We review the district court’s decision to deny the motion

to suppress in the light most favorable to the prevailing party,

the government. United States v. Hernandez, 279 F.3d 302, 306

(5th Cir. 2002). The district court’s conclusions of law are

subject to de novo review, but factual findings are reviewed only

for clear error. United States v. Valdez, 267 F.3d 395, 397 (5th

Cir. 2001). The scope of consent is a question of law. United

States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993). However, the

factual circumstances surrounding the consent may be instructive.

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"[W]here the judge bases a finding of consent on the oral

testimony at a suppression hearing, the clearly erroneous

standard is particularly strong since the judge had the

opportunity to observe the demeanor of the witnesses." United

States v. Davis, 61 F.3d 291, 299 (5th Cir. 1995) (quoting United

States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993)).

B. The Scope of Consent

Mendoza does not dispute the district court’s finding that

he consented to the agents’ requests to “look in” the truck.

Instead, he argues that the search of the cardboard box inside of

the trailer exceeded the scope of his consent.

1.

When the government relies upon consent as the basis for a

warrantless search, “they have no more authority than they have

apparently been given by the consent.” Wayne R. LaFave, Search

and Seizure § 8.1(c) (3d ed. 1996 & Supp. 2003). Under the

Fourth Amendment, “[t]he standard for measuring the scope of a

suspect’s consent...is that of ‘objective’ reasonableness–-what

would the typical reasonable person have understood by the

exchange between the officer and the suspect?” Florida v.

Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 L. Ed.

2d 297 (1991). “The question is not to be determined on the

basis of the subjective intentions of the consenting party or the

subjective interpretation of the searching officer.” LaFave,

Search & Seizure § 8.1. Although objective reasonableness is a

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question of law, the factual circumstances are highly relevant

when determining what the reasonable person would have believed

to be the outer bounds of the consent that was given. See United

States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir. 1992) (en banc)

(7-7 decision).5

The terms of the search’s authorization were simple. At the

initial inspection area, Ramos asked Mendoza if he could “take a

look in the back.” Mendoza replied simply, “Okay.” At the

secondary inspection area, when Lopez asked Mendoza if he could

“take a look” inside the trailer, Mendoza said, “Yes.” Law

enforcement officials are not required to separately request

permission to search each container within a vehicle for which

they have received consent to search. Jimeno, 500 U.S. at 252.

Mendoza chose not to place any explicit limitations in his

response to their general request, which, in this Circuit, is

evidence of general consent. See United States v. Crain, 33 F.3d

480, 484 (5th Cir. 1994). As we have stated in the past, “the

defendant, as the individual ‘knowing the contents of the

vehicle,’ has the ‘responsibility to limit the scope of the

consent.’” United States v. McSween, 53 F.3d 684, 688 (5th Cir.

1995)(quoting Rich, 992 F.2d 502, 507 (5th Cir. 1993)). At the

time Mendoza consented to a search of the trailer, he knew that

the brown cardboard boxes contained marijuana. “‘[I]f he deemed

5
Decisions by an equally divided en banc court have no value as binding
precedent. United States v. Knutson, 113 F.3d 27, 28 (5th Cir. 1997). We
nonetheless find the reasoning of Ibarra persuasive.

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it necessary to do so,’” he should have limited his consent “to

clarify any ambiguity from which he now seeks to benefit.” Id.

The fact that Mendoza did not object when Lopez actually began to

open the box provides additional evidence that the agent’s

actions were within the scope of initial consent.6 McSween, 53

F.3d at 688; United States v. Cannon, 29 F.3d 472, 477 (9th Cir.

1994).

Mendoza further argues that a reasonable person would have

assumed he had consented to only a quick look inside of the

trailer, rather than a search of the containers within, because

this is what Ramos had (1) literally requested; and (2) actually

done after receiving permission to “take a look” inside the cab

area. We first note that it is established law in this Circuit,

and others, that a request to “look in” a vehicle is the

equivalent of a request for general consent to search. McSween,

53 F.3d at 688; Crain, 33 F.3d at 484; Rich, 992 F.2d at 506.7

6
Defense counsel contends that Mendoza may not have been able to see Ramos
open the box, and was therefore not in a position to object. This is a purely
hypothetical argument. We have been unable to find any evidence in the record
to support the contention that the box was opened outside of Mendoza’s line of
sight. Moreover, this argument has been made, and rejected, in the past. “We
are unwilling to read Jimeno to hold ... that enforcement officials must
conduct all searches in plain view of the suspect, and in a manner slowly
enough that he may withdraw or delimit his consent at any time during the
search.” McSween, 53 F.3d at 688 (quoting Rich, 992 F.2d at 507).
7
See, e.g., United States v. Gant, 112 F.3d 239, 242-43 (6th Cir. 1997)
(quoting Rich, 992 F.2d at 506, for the proposition that “‘any words...that
objectively communicate to a reasonable individual that the officer is
requesting permission to [conduct a search] constitute a valid search request’
for Fourth Amendment purposes.”); United States v. Harris, 928 F.2d 1113, 1117
(11th Cir. 1991) (search of container found in trunk of vehicle after
permission given to “look” in vehicle held to be within the scope of consent);
United States v. Boucher, 909 F.2d 1170, 1174-75 (8th Cir. 1990) (consent to
“look in” defendant’s vehicle included permission to thoroughly search the
vehicle and did not limit the officer to a “cursory look through the
windows”); United States v. Espinosa, 782 F.2d 888, 892 (10th Cir. 1989)

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Second, Lopez requested and received permission to search the

trailer before he searched the cab of the truck. It is therefore

impossible that Mendoza relied upon the way that Lopez searched

the cab as an illustration of what he was agreeing to when he

consented to a search of the trailer.

2.

The scope of a consent search may also be limited, if not by

the suspect, by the stated object of the search. Jimeno, 500

U.S. at 251. In Jimeno, the defendant was pulled over in his

vehicle for a traffic violation. The officer told Jimeno that he

suspected that he was carrying narcotics, and then asked for

permission to search the car. Jimeno consented, and the officer

discovered cocaine inside of a folded, brown paper bag that had

been placed on the floorboard of the vehicle. The Supreme Court

held that a reasonable objective person would have concluded that

Jimeno’s general consent included permission to search containers

within the car that could conceivably contain drugs, such as the

paper bag. Id. at 249-51.

Mendoza contends that when he agreed to allow the trailer to

be searched, he did so because the questions asked by the agents

led him to believe that they were solely interested in looking

for illegal aliens, who could not have been hidden inside a 24" X

18" X 18" cardboard box. See United States v. Muniz-Melchor, 894

(concluding that defendant’s consent to officer’s request to “look through”
defendant’s automobile authorized officer to conduct thorough search of
vehicle).

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F.2d 1430, 1437 (5th Cir. 1990) (noting that searches at

checkpoints for illegal aliens are limited to compartments large

enough to hold a person). However, the exchanges between the

appellant and the agents support a consensual search of broader

dimensions.

The agents do not deny that they initially suspected that

Mendoza was transporting illegal aliens. Over twenty illegal

aliens had been found inside a similar truck at another

checkpoint in the same geographic area just three days earlier.

However, the primary inquiry in determining the scope of consent

is what a reasonable, objective, third party observer would have

understood the suspect had consented to –- not the subjective

intent of the enforcement officer. LaFave, Search and Seizure §

8.1(c). The agents did not tell Mendoza what they expected to

find during the course of a search, nor would their questions

have lead a reasonable observer to believe that they were solely

interested in eliminating the possibility that he was

transporting people.

At the primary inspection area, Agent Ramos asked Mendoza

his citizenship, and then asked him what he was hauling. Mendoza

replied that he was a Mexican citizen and was carrying cheese.

At the secondary inspection area, as Agent Lopez walked with

Mendoza to the back of the trailer, Lopez asked Mendoza his

citizenship and what he was transporting. Again, Mendoza

responded that he was a resident alien and that he was carrying

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cheese. Then Lopez said, “Well, can we take a look?” and Mendoza

replied, “Yes.” At the time that Mendoza gave his consent to

search the trailer, an objective observer would not be able to

specify a particular object of the search. Rather, the onlooker

would understand that the agents wanted to confirm that Mendoza

was indeed carrying nothing but cheese. The fact that after

Lopez received consent to search the trailer he asked Mendoza if

he had any passengers or a co-driver does not change this

conclusion. The agents never voiced their suspicion that Mendoza

was smuggling aliens, but rather asked a series of questions that

would lead a reasonable observer to believe that they were

interested in the contents of the truck generally. Considering

the conversations in toto, an objective, specifically that of

confirming the absence of people, was not sufficiently delineated

by the agents when they sought consent to constrain them in their

search. Mendoza gave general consent to a general request to

search the trailer.

3.

When a search is premised upon a general, limitless

statement of consent, enforcement officers do not have carte

blanche over the domain where consent was given. The

reasonableness superstructure of the Fourth Amendment still

applies, and demarcates the outer bounds of a consensual search.

Ibarra, 965 F.2d at 1358. The question then becomes whether it

was reasonable to interpret Mendoza’s general oral consent to

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search the trailer as authority to open a cardboard box, closed

shut with a piece of tape, located inside. See McSween, 53 F.3d

at 688. Mendoza contends that it was not. We disagree.

This Circuit has already addressed the situation where

enforcement officers interpret a grant of general consent to

search a vehicle as encompassing the containers located within.

See Crain, 33 F.3d 480. In Crain, this court was faced with

circumstances virtually identical to those the Supreme Court

encountered in Jimeno, with the exception that Crain had not been

told that the officers were interested in searching for

narcotics. See Jimeno, 500 U.S. at 249-50; Crain, 33 F.3d at

483. Crain and his vehicle had been stopped by law enforcement

officers for speeding. 33 F.3d at 482. Without stating

expressly or by implication what they expected a search of his

vehicle to uncover, the officers asked Crain for consent to look

inside his car. Crain agreed. Id. at 483. During the search,

one of the officers found a twisted and rolled up brown paper bag

lodged underneath the driver’s seat. Id. He opened the bag to

reveal a whitish rock substance that later proved to be crack

cocaine base. Id. Relying on Jimeno, we affirmed the district

court’s decision to deny a motion to suppress and held that

Crain’s general consent to an open-ended request to search the

vehicle reasonably extended to a paper bag jammed underneath the

seat. Id. at 484. The fact that the officers did not

particularize an objective when the sought consent did not limit

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the search’s scope beyond that which the Supreme Court had

previously deemed reasonable in Jimeno.

The Second Circuit has also concluded that the fact that the

defendant was not informed of the purpose of the search does not

affect the reasoning of Jimeno. See United States v. Snow, 44

F.3d 133, 135 (2d. Cir. 1995). In Snow, it was held that:

[T]he defendant did not–and probably could not–know
what the officer was looking for does not change our
view of his consent. It is self-evident that a police
officer seeking general permission to search a vehicle
is looking for evidence of illegal activity. It is
just as obvious that such evidence might be hidden in
closed containers. If the consent to search is
entirely open-ended, a reasonable person would have no
cause to believe that the search will be limited in
some way.

Id. at 135. The First Circuit has reached a similar conclusion.

See United States v. Zapata, 18 F.3d 971, 977-78 (1st Cir. 1994)

(holding that general consent to search a vehicle, granted

without the defendant’s knowledge of the search’s object,

extended to a zipped duffel bag found in the trunk of the

vehicle). Although the scope of a search is generally defined by

its expressed object, an object need not have been specified if

the circumstances could otherwise lead a reasonable person to

conclude that the search might include the container at issue.

McSween, 53 F.3d at 688. As discussed earlier, we believe a

reasonable person privy to the conversations that took place

between Mendoza and each of the Border Patrol Agents would

believe that Mendoza’s consent to search the trailer included

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permission to open a brown cardboard box located inside of it.

As previously noted, Mendoza did not object as Agent Lopez opened

one of the brown cardboard boxes. “A failure to object to the

breadth of the search is properly considered an indication that

the search was within the scope of the initial consent.” Id.

4.

The parties have invested significant energy into debating

whether the brown boxes were “closed” or “sealed,” and whether

they were more akin to “locked” or “unlocked” containers. In

Jimeno, the Court held that “consent to search a vehicle may

extend to closed containers found inside the vehicle.” 500 U.S.

at 250 (emphasis added). It specifically noted an exception,

however, stating in dicta that “[i]t is very likely unreasonable

to think that a suspect, by consenting to the search of his

trunk, has agreed to the breaking open of a locked briefcase

within the trunk.” Id. at 251-52 (emphasis added).

Mendoza contends that because the boxes were taped shut,

they were similar to a locked or sealed container, and their

search was therefore presumptively unreasonable. The government

responds that a box, kept shut by a single piece of tape, is

necessarily more like a closed, but unlocked container whose

search the Supreme Court condoned in Jimeno. We decline to

engage in an unnecessary semantic debate over the closed vs.

sealed distinction. The dictionary definition of “seal” is “to

close or make secure against access, leakage, or passage by a

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fastening or coating.” The definition of “close” is “to bring or

bind together the parts or edges....” Merriam-Webster Collegiate

Dictionary (2002). Neither of these definitions creates much of

a distinction between the two words, and therefore do not justify

their use as categories in which to pigeonhole the brown

cardboard box in this case. They are an even less appropriate

pivot upon which the question of a consensual search’s legality

should turn.8 The distinction has not yet achieved legal

significance, and we decline to recognize it at this time.9 In

this case, where the district court made no findings on the

issue, we find that the fundamental values that drove the Supreme

Court to distinguish a locked briefcase from a twisted paper bag

to be a sufficient guide in determining whether the search at

issue was reasonable.

8
The distinction is so indeterminate that a single container has been
described by one circuit as “sealed” and by another as “closed.” In United
States v. Springs, the D.C. Circuit affirmed the district court’s refusal to
suppress the drugs located inside a baby powder container found during the
course of a consensual search of the defendant’s tote bag. 936 F.2d 1330
(D.C. Cir. 1991). In the course of its opinion upholding the search of a can
of vegetable protein found during a consensual search of the defendant’s
luggage, the Third Circuit referred to the baby powder container at issue in
Springs as a “sealed” container. See United States v. Kim, 27 F.3d 947, 957
(3d Cir. 1994) (emphasis in original). In an opinion approving the search of
taped juicer boxes found within the defendant’s luggage, the Seventh Circuit
referred to the same baby powder container at issue in Springs as a “closed”
container. See United States v. Maldonado, 38 F.3d 936, 941 (7th Cir. 1994).

9
In recounting the procedural history of the case, the Supreme Court, in
Jimeno, quoted the earlier opinion of the Florida Court of Appeals which
equated the twisted paper bag at issue to a “sealed container.” 500 U.S. at
250. This is the only instance where the Court has used the term “sealed” in
this context.
This court used the word “sealed” liberally throughout both opinions in
United States v. Ibarra as descriptive of a characteristic that, if applicable
to a compartment or object opened during the course of a consent search, would
render that portion of the search illegal. 965 F.2d 1354, 1355-56, 1358, 1362
(5th Cir. 1992) (en banc) (7-7).

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 The Supreme Court likely differentiated between a reasonable

and unreasonable search of a container premised upon general

consent to search the vehicle in which it was found by the

varying impact that such a search has upon two interests: (1)

the owner’s expectation of privacy as demonstrated by his attempt

to lock or otherwise secure the container; and (2) the owner’s

interest in preserving the physical integrity of the container

and the functionality of its contents. See United States v.

Ross, 456 U.S. 798, 826 (1982)(Powell, J., concurring); Jimeno,

500 U.S. at 251-52; United States v. Muniz-Melchor, 894 F.2d

1430, 1434 (5th Cir. 1990); Ibarra, 965 F.2d at 1360.

Mendoza’s expectation of privacy with regard to the brown

cardboard boxes did not rise to the level of that evidenced by a

locked container. Locked containers require specific knowledge

of a combination, possession of a key, or a demonstration of

significant force to open. See United States v. Springs, 936

F.2d 1330, 1334 (D.C. Cir. 1991); United States v. Kim, 27 F.3d

947, 957 (3d Cir. 1994). The boxes at issue in this case were

located inside the trailer of a commercial vehicle and could be

easily opened by removing or cutting through a single piece of

tape.10 A single piece of tape is commonly used on a cardboard

box not to send any particular message of privacy, but rather to

keep the stiff side flaps closed to prevent the contents from

10
Although Agent Lopez had a pocketknife with him which he used to cut the
piece of tape over the top of the box, there was no evidence presented to
indicate that the use of a knife was actually necessary to open the box.

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spilling out and being damaged during transit. The box was not

marked with the word “private,” placed underneath two pieces of

heavy luggage, or otherwise sent out a message to curious eyes

that its owner placed particular importance upon the privacy of

its contents. See United States v. Ross, 456 U.S. 798, 822 n. 30

(1982). An objective appraisal of all of the circumstances

surrounding the search of the cardboard box indicates that

Mendoza’s apparent expectation of privacy regarding its contents

did not rise to the level of making its search unreasonable under

the Fourth Amendment.

Nor did Agent Lopez damage the box, render it useless, or

endanger its contents during the course of the search. See

Jimeno, 500 U.S. at 251-52 (describing as “likely unreasonable”

the “breaking open of a locked briefcase” (emphasis added));

Ibarra, 965 F.2d 1354 (deeming unreasonable search where agents

used sledgehammer to smash open securely boarded-up attic);

United States v. Strickland, 902 F.2d 937 (11th Cir. 1990)

(holding that slashing open a spare tire found inside the trunk

of the defendant’s vehicle exceeded the reasonable scope of

consent).

Mendoza relies particularly upon our decision in United

States v. Ibarra, where a split en banc court affirmed the

panel’s decision to suppress evidence found within the boarded-up

attic space of a house which law enforcement officers had

obtained simple consent to search. 965 F.2d 1354. In Ibarra, we

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accepted the district court’s finding that in using a

sledgehammer to remove the well-secured boards that covered the

attic entrance, the “agents engaged in flagrant structural

demolition of the premises.” Id. at 1355, 1357. Ibarra,

however, is distinguishable from the case at hand in two key

respects. First, the cardboard box is an entity independent of

the compartment (in this case, a vehicle) in question. In

Ibarra, the attic space was adjacent to, or arguably a part of,

the area of consent. See id. at 1362. Second, the search of the

box did not result in anything remotely similar to structural

damage –- to either the truck, its trailer, or the boxes. As

hordes of college students and others who seek out discarded

boxes at grocery stores are well aware, cardboard boxes that were

once taped, glued, or closed in some other manner are just as

capable of performing their function on subsequent occasions with

the help of a brand new piece of tape. In this respect,

notwithstanding the first distinction, the search of the boxes is

more similar to the search that we upheld in United States v.

Flores, where troopers unscrewed two screws and removed two vent

covers from the interior panels of a vehicle. 63 F.3d 1342, 1362

(5th Cir. 1995). In each case, with minimal effort, the

structure of the vehicle, and the boxes opened by Agent Lopez,

can be restored to their original condition.

The cardboard boxes in this case are not similar to locked

briefcases. We therefore reject the appellant’s argument that

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the search of the box was per se unreasonable based upon the

dicta of Jimeno, which addresses concerns that are inapplicable

to facts at hand.11

III. Sentencing

Mendoza contends that his amended sentence, which, in

addition to thirty months of jail time, calls for four years of

supervised release, exceeds the statutory maximum of the drug

crime for which he was convicted. His argument is premised upon

this court’s evolving jurisprudence in the wake of the Supreme

Court’s decision in Apprendi v. New Jersey. 530 U.S. 466, 20 S.

Ct. 2348, 147 L. Ed.2d 435 (2000). There, the Court determined

that “other than a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury and proved beyond a reasonable doubt.”12

Id. at 490.

Mendoza was convicted of knowingly possessing marijuana,

with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

The statute proscribes a minimum and maximum permissible sentence

for a violation, based upon the amount and the type of drug. §

841(b)(1)(D) mandates that prison time imposed for violations

11
We base our decision on the specific facts found here, so we do not decide
whether a package can ever be so well bound with tape that it is tantamount to
a “locked” container for purposes of the Fourth Amendment.
12
The Government, at oral argument, appeared to concede this argument.
However, given the state of flux in this area of the law, and the time that
has since passed, we feel obliged to apply the law as it stands on the day of
this decision and determine the issue on the merits.

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involving less than 50 kilograms of marijuana does not exceed

five years. As a Class D felony, such a violation is also

subject to a maximum supervised release term of three years. See

18 U.S.C. § 3583(b)(2); United States v. Garcia, 242 F.3d 593,

600 (5th Cir. 2001). The district court originally sentenced

Mendoza to 96 months in jail, followed by four years of

supervised release, pursuant to the sentencing range prescribed

in § 841(b)(1)(B) for violations involving over 100 kilograms of

marijuana. At the request of the Government, the district court

subsequently amended the sentence to require 30 months of jail

time, but did not adjust the four year period of supervised

release. Mendoza maintains that the four year period of

supervised release violates Apprendi.

In United States v. Doggett, we held that Apprendi required

that the quantity of drugs to be alleged in the indictment and

proved to the jury beyond a reasonable doubt if, as here, the

government seeks a sentence above the “core” five-year maximum in

§ 841(b)(1)(D). 230 F.3d 160, 163-65 (5th Cir. 2000). The

indictment against Mendoza charged him with possession of

marijuana with intent to distribute under § 841(a)(1), but did

not allege the quantity of marijuana involved. Nor did the

district court make a finding regarding drug quantity.

Mendoza argues, for the first time on appeal, that Doggett

requires us to vacate and remand for resentencing his four-year

term of supervised release. 230 F.3d 160. In the time since the

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parties submitted their briefs, both the Supreme Court and this

court have handed down decisions that directly confront the

question before us. See United States v. Cotton, — U.S. —, 122

S. Ct. 1781, 152 L. Ed.2d 860 (2002); United States v. Longoria,

298 F.3d 367 (5th Cir. 2002) (en banc), cert. denied, 123 S. Ct.

573 (2002); United States v. Baptiste, 309 F.3d 274 (5th Cir.

2002) (per curiam) (on petition for rehearing), petition for

cert. filed (Dec. 13, 2002) (No. 02-8060), and petition for cert.

filed (Dec. 20, 2002) (No. 02-8117).

In Cotton, the Supreme Court held that indictment omissions

should be reviewed for plain error if the defendant failed to

object to the enhanced sentence in the trial court. 122 S. Ct.

at 1783. “Under that test, before an appellate court can correct

an error not raised at trial, there must be (1) an ‘error,’ (2)

that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’”

Id. at 1785 (quoting Johnson v. United States, 520 U.S. 461, 466-

467, 117 S. Ct. 1544, 137 L. Ed.2d 718 (1997). “If all three

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.” Id.

The Government concedes that its failure to include drug

quantity in the indictment, a fact that increased the statutory

maximum sentence, was erroneous under the reasoning of Apprendi.

At the time of sentencing, the decision in Apprendi had been on

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the books for almost a year, and Doggett had been decided six

months earlier. The error was therefore also plain. See United

States v. Olano, 507 U.S. 725, 734 (1993) (equating “plain” with

“clear” or “obvious”). We decline to determine whether the error

affected Mendoza’s substantial rights, however, because we find

that the error did not “seriously affect the fairness, integrity,

or public reputation of judicial proceedings.” Cotton, 122 S.

Ct. at 1785.

In determining the impact of the error upon the judicial

proceeding, Cotton requires us to consider the likelihood that

the grand jury would have indicted the defendant of possessing

with the intent to distribute that particular quantum of

marijuana, had the Government requested, by assessing the

available evidence relating to drug quantity. See Cotton, 122 S.

Ct. at 1786; Longoria, 298 F.3d at 373-74; Baptiste, 2002 WL

31178217, *2. If the evidence supporting the drug quantity that

the district court used as a basis for Mendoza’s enhanced term of

supervised release is “overwhelming” and “essentially

uncontroverted,” than the error cannot be said to have seriously

affected the integrity of the proceedings. Cotton, 122 S. Ct. at

1786.

Mendoza never disputed at trial or at sentencing that his

truck contained over 150 kilograms of marijuana when he came

through the Sierra Blanca checkpoint. He admitted in a statement

produced by his attorney on his behalf that he believed he was

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transporting approximately 300 pounds (approximately 145

kilograms) of marijuana. Additional statements throughout the

record consistently note that over 150 kilograms of marijuana

were ultimately discovered inside the truck. Given these

circumstances, and the precedent by which we are bound, we feel

constrained to find that the failure to mention drug quantity in

the indictment does not rise to the level of remediable plain

error.

IV. Conclusion

For the foregoing reasons, we find that the search of the

defendant’s truck was consensual and conducted in a reasonable

manner consistent with the requirements of the Fourth Amendment.

The terms of the defendant’s supervised release, while erroneous,

do not rise to the level of remediable error. The conviction and

sentence are affirmed.

AFFIRMED.

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