United States v. Fernandez

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
May 26, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20703
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE NATIVIDAD FERNANDEZ, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-720-1
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Natividad Fernandez, Jr., appeals from his conviction
and sentence following a bench trial on stipulated facts for
conspiracy to possess with intent to distribute marijuana and for
possession with intent to distribute marijuana. 21 U.S.C.
§§ 841(a)(1), (b)(1), 846; 18 U.S.C. § 2. Fernandez argues that
the district court erred in denying his motion to suppress
evidence of marijuana seized during a warrantless search. Even

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No. 03-20703
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if Fernandez had an expectation of privacy in the garage and
storage area searched, the district court’s determination, that
exigent circumstances justified the warrantless search, is not
clearly erroneous. See United States v. Vasquez, 953 F.2d 176,
179 (5th Cir. 1992); United States v. Rico, 51 F.3d 495, 501 (5th
Cir. 1995). Moreover, the entry into the garage and storage area
was permissible as a protective sweep incident to Fernandez’s
arrest. See Maryland v. Buie, 494 U.S. 325, 327 (1990); United
States v. Watson, 273 F.3d 599, 603 (5th Cir. 2001).
Fernandez challenges the district court’s refusal to award
him a two-level decrease in his offense level pursuant to the
safety-valve provision, U.S.S.G. §§ 2D1.1(b)(6) and 5C1.2(a)(5).
The district court did not err in determining that Fernandez was
not entitled to a safety-valve reduction. See United States v.
Flanagan, 80 F.3d 143, 145-47 (5th Cir. 1996).
AFFIRMED.

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