UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4625

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANCISCO ROMERO-PINA, a/k/a Don Beto,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. William L. Osteen,

District Judge. (CR-04-210)

Submitted: January 11, 2006 Decided: February 2, 2006

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Aaron E. Michel, Charlotte, North Carolina, for Appellant.

Gretchen C. F. Shappert, United States Attorney, David A. Brown,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1The latter two crimes also included aiding and abetting

charges under 18 U.S.C. § 2.

2

Romero-Pina also argues that the district court erred by not

requiring the government at the suppression hearing to establish

2

PER CURIAM:

A jury convicted Francisco Romero-Pina of possession of a

firearm by a prohibited person, immigration fraud, and

identification document fraud, in violation of 18 U.S.C. §§

922(g)(5), 1546(a), and 1028(a)(1), respectively.1

 The district

court sentenced Romero-Pina to a term of 42 months of imprisonment

to be followed by a two-year term of supervised release. RomeroPina now appeals his conviction on several grounds. Finding no

error, we affirm.

Romero-Pina first argues that the district court erred by

denying his suppression motion. Specifically, Romero-Pina sought

to suppress (1) evidence obtained during a search of the apartment

in which he and his friend resided, and (2) certain statements he

made to law enforcement. Following a suppression hearing, a

magistrate judge found that Romero-Pina and his friend voluntarily

consented to the search of their apartment. The magistrate judge

further found that Romero-Pina’s statements were “probably” made

during a non-custodial interview, and they were in any event made

after he had knowingly and voluntarily waived his Miranda rights.

On de novo review, the district court overruled Romero-Pina’s

objections and sustained these findings.2 In considering this
beyond a reasonable doubt that he consented to the search of the

apartment and that his statements were voluntarily made. We find

this argument to be meritless. See generally United States v.

Matlock, 415 U.S. 164, 177 n.14 (1974) (noting that “the

controlling burden of proof at suppression hearings should impose

no greater burden than proof by a preponderance of the evidence”).

3Romero-Pina also argues, alternatively, that the district

court erred under Fed. R. Evid. 403 by admitting this evidence at

trial because it is more prejudicial than probative. We find this

argument to be completely without merit. See generally United

States v. Love, 134 F.3d 595, 603 (4th Cir. 1998) (noting that

under our “broadly deferential standard” of review, we will not

upset a district court’s Rule 403 decision “except under the most

extraordinary of circumstances” (citation and internal punctuation

omitted)).

3

issue, we review the district court’s factual findings for clear

error, viewing the evidence in the light most favorable to the

government, and we review the district court’s legal conclusions de

novo. See United States v. Perkins, 363 F.3d 317, 320 (4th Cir.

2004). Applying these standards, we find that the district court

did not err by denying the suppression motion.3

Romero-Pina next argues that the district court erred by

denying his motion to enforce an alleged agreement made by a law

enforcement agent not to prosecute him. Romero-Pina bore the

burden of proving that such an agreement existed and that it was

binding on the government. See United States v. Martin, 25 F.3d

211, 217 (4th Cir. 1994) (noting burden of proof concerning plea

agreements). We review the district court’s factual determinations

concerning the existence and scope of an alleged immunity agreement

under a clearly erroneous standard, and its application of the law
4For the same reason, we also reject Romero-Pina’s contention

that the evidence concerning the interstate commerce element is

insufficient to sustain the verdict on the § 922(g)(5) charge.

4

de novo. See id. Having carefully reviewed the record, we find

that the district court did not err in denying this motion. 

Romero-Pina also argues that the district court erred by

denying his Second Amendment challenge to § 922(g)(5). We have

reviewed this constitutional issue de novo, see United States v.

Bostic, 168 F.3d 718, 721 (4th Cir. 1999), and find that RomeroPina’s argument is foreclosed by our decision in United States v.

Johnson, 497 F.2d 548, 550 (4th Cir. 1974), in which we rejected a

similar Second Amendment challenge to § 922(g).

Finally, Romero-Pina argues that the district court erred by

declining to give his proposed jury instruction concerning the

interstate commerce element for the § 922(g)(5) charge. We review

de novo the correctness of jury charges regarding the elements of

an offense. United States v. Horton, 321 F.3d 476, 479 (4th Cir.

2003). Because the district court’s instruction properly comports

with our circuit precedent, see, e.g., United States v. Quarles,

330 F.3d 650, 651 n.1 (4th Cir. 2003) (rejecting a similar

argument),4 we find that the district court did not err by

declining to give Romero-Pina’s requested instruction.
5

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED