IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40704

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JORGE LUIS GRACIA, also known as Jose Angel Gracia,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:16-CR-706-18

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jorge Luis Gracia was convicted pursuant to his conditional guilty plea 

of conspiracy to possess with intent to distribute less than 500 grams of 

cocaine. In this appeal, he challenges the district court’s denial of his motion 

to suppress evidence seized during a warrantless search of the vehicle in which 

he was a passenger. He contends that the driver’s consent to the search was 

not voluntary. We assume without deciding that Gracia has standing to object 

 

* 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

March 2, 2018

Lyle W. Cayce

Clerk

 Case: 17-40704 Document: 00514370392 Page: 1 Date Filed: 03/02/2018
No. 17-40704

2

to the driver’s consent to the search. See United States v. Iraheta, 764 F.3d 

455, 461 (5th Cir. 2014). We also decline to decide whether Gracia preserved 

this argument by sufficiently raising the voluntariness of the driver’s consent 

in the district court, see United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 

2010), because his argument lacks merit on any standard of review, see United 

States v. Fernandez, 559 F.3d 303, 330 (5th Cir. 2009).

“A search conducted pursuant to consent is excepted from the Fourth 

Amendment’s warrant and probable cause requirements.” United States v. 

Solis, 299 F.3d 420, 436 (5th Cir. 2002). The voluntariness of consent is a fact 

question determined from the totality of circumstances and is reviewed for 

clear error. Id. We consider the following six non-dispositive factors to 

determine whether consent to a search was voluntarily given:

(1) the voluntariness of the defendant’s custodial status; (2) the 

presence of coercive police procedures; (3) the extent and level of 

the defendant’s cooperation with the police; (4) the defendant’s 

awareness of his right to refuse to consent; (5) the defendant’s 

education and intelligence; and (6) the defendant’s belief that no 

incriminating evidence will be found.

Id. at 436 & n.21 (internal quotation marks and citation omitted).

Having reviewed the parties’ arguments, the suppression hearing, and 

the video recording of the traffic stop, we conclude that the district court’s 

implicit finding that the driver voluntarily consented to the search is a 

reasonable view of the evidence based on the totality of the circumstances. See

Scroggins, 599 F.3d at 440; Solis, 299 F.3d at 436; see also United States v. 

Crain, 33 F.3d 480, 483-84 (5th Cir. 1994). Gracia’s arguments to the contrary, 

including his contention that the driver merely acquiesced to a claim of lawful 

authority, are unpersuasive and fail to establish “a definite and firm conviction 

that a mistake has been committed.” Scroggins, 599 F.3d at 440.

AFFIRMED.

 Case: 17-40704 Document: 00514370392 Page: 2 Date Filed: 03/02/2018