United States v. Pedraza

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 2002
• Docket: 01-41381
• Status: Unpublished

Opinion

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.