United States v. Perez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40182 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

FERNANDO A. PEREZ

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CR-54-ALL -------------------- December 11, 2001 Before KING, Chief Judge, and JOLLY and DEMOSS, Circuit Judges.

PER CURIAM:*

Fernando A. Perez appeals his conviction and sentence for

possession with intent to distribute more than 50 kilograms of

marijuana, in violation of 21 U.S.C. § 841(a)(1). In particular,

Perez challenges the district court’s denial of his motion to

suppress evidence. Perez contends that his consent to open the

trunk of his vehicle was not given voluntarily since the

circumstances surrounding his “roadside interrogation” were

“naturally coercive.” Perez also argues that the investigating

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40182 -2-

officer exceeded the scope of the consent when he leaned inside

the trunk to smell and when he squeezed Perez’s luggage.

We review Perez’s claim of involuntary consent for plain

error since his argument that his consent was obtained through

coercive means is raised for the first time on appeal. Perez’s

argument does not survive this standard of review. United States

v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc);

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

Similarly, Perez’s argument that the investigating officer

exceeded the scope of the consent is not supported by the law of

this circuit. See United States v. McSween, 53 F.3d 684, 688

(5th Cir. 1995).

AFFIRMED.