IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50781

c/w No. 11-50798

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAMON JAVIER CASTRO,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 6:11-CR-56-1

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

Ramon Javier Castro was convicted of possession with intent to distribute

at least five kilograms of cocaine and sentenced to 120 months of imprisonment

and five years of supervised release. He appeals the denial of his motion to

suppress evidence obtained from a search of his vehicle following a traffic stop.

Castro contends that the traffic stop was unconstitutional because the

officer did not have an objectively reasonable basis for believing that Castro had

United States Court of Appeals

Fifth Circuit

F I L E D

June 27, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-50781 c/w No. 11-50798

committed a traffic violation by traveling in the left lane of the highway without

passing. He argues that he did not commit a traffic violation because he lacked

notice of the left-lane driving restriction. This specific argument regarding the

legality of the traffic stop is raised for the first time on appeal. “[F]ailure to raise

specific issues or arguments in pre-trial suppression proceedings operates as a

waiver of those issues or arguments for appeal.” United States v. Pope, 467 F.3d

912, 918-19 (5th Cir. 2006) (emphasis in original). Therefore, Castro’s argument

on appeal is waived. We have nonetheless reviewed Castro’s argument for plain

error “for good measure.” United States v. Scroggins, 599 F.3d 433, 448 (5th Cir.

2010).

To show plain error, Castro must show that the error was clear or obvious

and affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135

(2009). If he makes such a showing, we have the discretion to correct the error

but only if it “‘seriously affect[s] the fairness, integrity, or public reputation of

judicial proceedings.’” Id. (alteration in original) (quoting United States v.

Olano, 507 U.S. 725, 736 (1993)).

A warrantless but limited search and seizure of a vehicle is permissible

under the Fourth Amendment “where there is a reasonable and articulable

suspicion that a person has committed or is about to commit a crime.” United

States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). The legality of such a search

or seizure is examined under the two-pronged analysis set forth in Terry v. Ohio,

392 U .S. 1 (1968), to determine “1) whether the officer’s action was justified at

its inception; and 2) whether it was reasonably related in scope to the

circumstances that justified the interference in the first place.” Id. at 240.

“For a traffic stop to be justified at its inception, an officer must have an

objectively reasonable suspicion that some sort of illegal activity, such as a

traffic violation, occurred, or is about to occur, before stopping the vehicle.” 

United States v. Lopez-Moreno, 420 F.3d 420, 430 (5th Cir. 2005). It would not

have been clearly erroneous for the district court to have found that Castro

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No. 11-50781 c/w No. 11-50798

traveled by a sign notifying drivers of the left-lane travel restriction at highway

mile marker 321. See United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). 

Since Castro traveled by a sign notifying drivers of the left-lane travel

restriction, the arresting officer had reasonable suspicion to stop Castro for

traveling in the left lane without passing. See Green v. State, 93 S.W.3d 541, 546

(Tex. App. 2002) (citing TEX. TRANSP. CODE ANN. §§ 544.004, 544.011).

Castro nonetheless argues that driving in the left lane without passing is

not a traffic violation if there is no sign prohibiting the conduct at the time and

place of the alleged violation. The sign that Castro traveled by was 24 miles

from the location of the alleged violation. Castro has failed to carry his burden

on plain error review of demonstrating that the Texas Transportation Code

requires the traffic control device to be in direct proximity to the location of the

alleged violation. Cf. TEX.TRANSP. CODE ANN. § 544.004(b); see United States v.

Sandlin, 589 F.3d 749, 757 (5th Cir. 2009). Therefore, he cannot show that the

district court erred, much less plainly erred, by denying his motion to suppress

on the ground that the officer had reasonable suspicion to stop him for

committing a traffic violation. In light of this conclusion, we need not reach

Castro’s argument that his consent to the search of the vehicle was involuntary

because the traffic stop was unconstitutional.

The judgment of the district court is AFFIRMED.

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