IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41194

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EUSEBIO SALAZAR, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-1139-2

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Following a bench trial, Eusebio Salazar, Jr., was convicted of conspiracy 

to transport illegal aliens within the United States and two counts of 

transporting illegal aliens, in violation of 8 U.S.C. § 1324(a), and sentenced to 

30 months of imprisonment on each count, with the sentences running 

concurrently. On appeal, he argues that the district court erred by denying his 

motion to suppress the evidence obtained following a stop by Border Patrol 

 

* 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

FILED

June 21, 2017

Lyle W. Cayce

Clerk

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No. 16-41194

2

agents because the agents lacked reasonable suspicion to stop the vehicle he 

was driving. In lieu of filing a brief, the Government filed a motion for 

summary affirmance or, in the alternative, a motion for an extension of time 

to file its brief.

When reviewing a denial of a motion to suppress evidence, this court

reviews factual findings for clear error and conclusions of law de novo. United 

States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). “[A] district court’s 

determination that a seizure has or has not occurred is a finding of fact subject 

to reversal only for clear error.” United States v. Valdiosera-Godinez, 932 F.2d 

1093, 1098 n.1 (5th Cir. 1991). Summary affirmance is proper where, among 

other instances, “the position of one of the parties is clearly right as a matter 

of law so that there can be no substantial question as to the outcome of the 

case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 

The Government claims that the issues in this case are foreclosed by “wellsettled authority,” including, inter alia, Terry v. Ohio, 392 U.S. 1 (1968), and 

United States v. Mask, 330 F.3d 330 (5th Cir. 2003). However, summary 

affirmance is not proper in this case because neither Terry nor Mask addresses 

the exact issues raised by Salazar. See United States v. Houston, 625 F.3d 871, 

873 n.2 (5th Cir. 2010); see also Terry, 392 U.S. at 4-8; Mask, 330 F.3d at 332-

34.

Nevertheless, Salazar fails to show that the district court’s findings on 

when the seizure occurred were clearly erroneous. See Valdiosera-Godinez,

932 F.2d at 1098 n.1. The district court determined that Salazar was not seized 

until “after the BMW engaged in erratic and evasive driving maneuvers, after 

[the] unlawful alien passengers were witnessed running from their vehicle, 

and after the BMW . . . rammed the Border Patrol unit.” See California v. 

Hodari D., 499 U.S. 621, 629 (1991); United States v. Holloway, 962 F.2d 451, 

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456-57 (5th Cir. 1992). However, Salazar failed to brief the timing issue, so he 

has waived any challenge to the district court’s findings. See United States v. 

Charles, 469 F.3d 402, 408 (5th Cir. 2006). Therefore, he has not shown that 

the district court’s timing decision was clearly erroneous. See ValdioseraGodinez, 932 F.2d at 1098 n.1. And the Border Patrol agents’ receipt of an 

anonymous tip concerning Salazar’s vehicle and observation of Salazar driving 

erratically and evasively, stopping to allow individuals to run from his vehicle, 

and ramming a Border Patrol unit sufficiently support the Border Patrol 

agents’ seizure here.

Accordingly, the Government’s motions are DENIED, and the district 

court’s decision is AFFIRMED.

 Case: 16-41194 Document: 00514042186 Page: 3 Date Filed: 06/21/2017