IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10969

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDUARDO HINOJOSA,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CR-51-1

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Eduardo Hinojosa was charged by indictment with possession of stolen

mail, in violation of 18 U.S.C. § 1708. After his motion to suppress was denied,

he entered a conditional guilty plea, reserving his right to appeal the officers’

reasonable suspicion to stop the vehicle Hinojosa was driving and the Fourth

Amendment issues surrounding the officers’ probable cause to search the vehicle.

Hinojosa received a sentence of 46 months in prison, to be followed by a threeyear term of supervised release, and he was ordered to pay restitution.

United States Court of Appeals

Fifth Circuit

F I L E D

August 16, 2010

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. 09-10969

On appeal, Hinojosa asserts that the district court erred in denying his

motion to suppress without holding an evidentiary hearing to resolve disputed

factual issues. The Government contends that this issue was not preserved by

Hinojosa’s conditional plea. We need not resolve at this time whether Hinojosa’s

claim was waived by his guilty plea, as his claim is meritless.

An evidentiary hearing is required on a motion to suppress “only when

necessary to receive evidence on an issue of fact.” United States v. Harrelson,

705 F.2d 733, 737 (5th Cir. 1983). “General or conclusory assertions” are

insufficient to warrant a hearing. Id. This court reviews a district court’s failure

to hold an evidentiary hearing on a motion to suppress for abuse of discretion.

Id.

Hinojosa contends that the court should have held a hearing to resolve

disputed issues of fact regarding the officers’ reasonable suspicion to stop the

truck that he was driving. The district court rejected his challenge to the stop,

concluding that the witness’s description of the color and type of vehicle

involved, combined with the fact that the officers encountered a vehicle matching

that description within blocks of the crime scene and shortly after the witness

provided her information, was sufficient to establish reasonable suspicion. See

United States v. Hall, 557 F.2d 1114, 1115-17 (5th Cir. 1977); see United States

v. Jones, 234 F.3d 234, 239 (5th Cir. 2000) (permitting a limited search and

seizure if “there is a reasonable and articulable suspicion that a person has

committed or is about to commit a crime”). The factual “discrepancies” alleged

by Hinojosa, to the extent that they exist, do not call into question the bases

relied upon by the district court in its ruling, and thus it was not necessary for

the court to hold a hearing on those claims. See Harrelson, 705 F.2d at 737.

Although Hinojosa contends that the district court relied upon assumptions

made by the Government that were unsupported by the police reports, the record

belies this claim.

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No. 09-10969

With respect to the search of the vehicle, Hinojosa maintains that the

district court should have held an evidentiary hearing to resolve factual issues

showing that the search was improper pursuant to Arizona v. Gant, 129 S. Ct.

1710, 1719 (2009). The district court determined that the factors establishing

reasonable suspicion for the stop, combined with the officers’ visual confirmation

that one of the truck’s occupants matched the description of the suspect provided

by the witness and the location of mail in plain view throughout the truck,

provided probable cause for the officers to believe that they would find evidence

of a crime. See United States v. Saucedo-Munoz, 307 F.3d 344, 351 (5th Cir.

2002) (identifying the automobile exception to the warrant requirement). In

Gant, the Supreme Court set forth limitations on an officer’s ability to conduct

a warrantless search of a vehicle pursuant to arrest. 129 S. Ct. at 1719. The

Court did not hold that other exceptions to the warrant requirement were

affected. Id. at 1723-24. Because the officers’ search of Hinojosa’s vehicle was

not made pursuant to arrest, Gant was inapplicable. Thus, it was not necessary

for the district court to hold a hearing to resolve issues arising under Gant before

ruling on the motion to suppress. See Harrelson, 705 F.2d at 737. Because

Hinojosa has not shown that the district court abused its discretion in not

holding an evidentiary hearing, the judgment of that court is AFFIRMED. See

id.

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Case: 09-10969 Document: 00511204137 Page: 3 Date Filed: 08/16/2010