* 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should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

July 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-51458

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO GARCIA-BAEZA,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

No. 7:05-CR-91-ALL

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Roberto Garcia-Baeza was convicted by a jury of attempting to

transport more than $10,000 outside the United States with the intent to evade the currency reporting requirements of 31 U.S.C.

§ 5316, in violation of 31 U.S.C. § 5332. The district court

sentenced Garcia-Baeza to a 27-month term of imprisonment and a
No. 05-51458

- 2 -

three-year period of supervised release. Garcia-Baeza contends

that the court erred in denying his motion to suppress. We review

the district court’s fact findings for clear error and its legal

conclusions de novo. United States v. Lopez-Moreno, 420 F.3d 420,

430 (5th Cir. 2005), cert. denied, 126 S. Ct. 1449 (2006). 

Garcia-Baeza contends the court should have suppressed statements made by him before he was given warnings pursuant to Miranda

v. Arizona, 384 U.S. 436 (1966). Garcia-Baeza was arrested after

bulk currency was discovered on his person and in his vehicle during a traffic stop. Routine traffic stops are analyzed under Terry v. Ohio, 392 U.S. 1 (1968). Lopez-Moreno, 420 F.3d at 430. A

reasonable person in Garcia’s situation would not have understood

that he was under formal arrest. See United States v. Bengivenga,

845 F.2d 593, 596–98 (5th Cir. 1988) (en banc). The restraint on

his freedom of movement was not of a degree that the law associates

with formal arrest. See id. The court did not err in refusing to

suppress the pre-arrest statements. 

Garcia-Baeza argues that the court should have suppressed the

statements he made during an interview, two days after his arrest,

with a Special Agent of the Department of Homeland Security, Immigration and Customs Enforcement because he was not taken before a

magistrate judge in accordance with FED. R. CRIM. P. 5(a). He does

not dispute that he was legally detained pursuant to the immigration laws or that he was advised of his right to remain silent

before the interview. See 8 U.S.C. § 1357(a)(2). Because he has
No. 05-51458

- 3 -

been tried and convicted, he must show that he was prejudiced by

the delay in taking him before a magistrate judge. See United

States v. Causey, 835 F.2d 1527, 1529 (5th Cir. 1988). He can do

so by demonstrating that the delay affected the voluntariness of

his custodial statement. See United States v. Bustamante-Saenz,

894 F.2d 114, 120 (5th Cir. 1990). His conclusional argument does

not demonstrate that the delay in taking him before the magistrate

judge was “for the purpose of interrogation or for any other malevolent reason” or “that the delay tainted the voluntariness of his

confession or that there was a causal connection between the delay

and his confession.” See Bustamante-Saenz, 894 F.2d at 120; see

also United States v. Martin, 431 F.3d 846, 849–50 (5th Cir. 2005),

cert. denied, 126 S. Ct. 1664 (2006); United States v. PerezBustamante, 963 F.2d 48, 51–54 (5th Cir. 1992). The court did not

err in denying the motion to suppress.

Garcia-Baeza contends in a FED. R. APP. P. 28(j) letter that

his sentence was increased beyond the statutory maximum in light of

Blakely v. Washington, 542 U.S. 296 (2004). This question is not

properly before this court and has not been considered. See FED.

R. APP. P. 28(j); 5TH CIR. R. 28.4. 

AFFIRMED.