Case: 15-50675 Document: 00513452190 Page: 1 Date Filed: 04/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50675
Fifth Circuit
FILED
Summary Calendar April 5, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GERARDO MONTES-NUNEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-14
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Following a bench trial, Gerardo Montes-Nunez was convicted of having
been unlawfully present in the United States after removal, and he was
sentenced to 10 months in prison. On appeal, Montes-Nunez, who was arrested
following a traffic stop, claims that the evidence obtained by Border Patrol
agents—including his identity-related statements, fingerprints, photograph,
and A-file—should have been suppressed as fruits of what the district 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-50675 Document: 00513452190 Page: 2 Date Filed: 04/05/2016
No. 15-50675
determined was an illegal seizure. Thus, he contends that the district court
erred in denying his pretrial motion to suppress.
As an initial matter, Montes-Nunez waived any challenge regarding his
A-file through his counsel’s statement at the suppression hearing that
Montes-Nunez was not “seeking to suppress his A file.” Thus, his claim on this
point is “entirely unreviewable.” United States v. Musquiz, 45 F.3d 927, 931
(5th Cir. 1995).
The Government has moved for summary affirmance on the ground that
the sole issue raised by Montes-Nunez is foreclosed. This court has held that
even if there was a Fourth Amendment violation, evidence of identity is not
suppressible. See United States v. Hernandez-Mandujano, 721 F.3d 345, 351
(5th Cir. 2013); United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir.
1999). Accordingly, as Montes-Nunez concedes, his argument is foreclosed.
See Roque-Villanueva, 175 F.3d at 346. Further, although Montes-Nunez
argues that Roque-Villanueva was wrongly decided, one panel of this court may
not overrule a prior decision of another panel in the absence of an intervening
contrary or superseding decision by this court sitting en banc or by the United
States Supreme Court. United States v. Traxler, 764 F.3d 486, 489 (5th Cir.
2014).
The motion for summary affirmance is GRANTED.
AFFIRMED.
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