IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40868

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MOHAMED LAYE DIOUBATE,

Defendant-Appellant

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 1:13-CR-40

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

A jury convicted Defendant-Appellant Mohamed Laye Dioubate of 

possession of 15 or more unauthorized access devices in violation of 18 U.S.C. 

§ 1029(a)(3). The district court sentenced him to 33 months of imprisonment 

and a three-year term of supervised release. Dioubate challenges the traffic 

stop and subsequent search of his vehicle, contending that officers illegally 

detained him while waiting for the K-9 unit to arrive on the scene. He argues 

 

* 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 17, 2015

Lyle W. Cayce

Clerk

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No. 14-40868

2

that the government failed to establish that the dog was qualified to conduct a 

sniff search of the exterior of the vehicle or that the dog’s false alert provided 

probable cause for such a search. Dioubate also contends that the district court 

erred by permitting a Secret Service agent to testify as an expert in the use 

and interpretation of a magnetic card reader.

In reviewing the denial of a motion to suppress, we address the district 

court’s conclusions of law de novo and its findings of facts, including credibility 

determinations, for clear error, viewing the evidence in the light most favorable 

to the government. United States v. Montes, 602 F.3d 381, 384-85 (5th Cir. 

2010). We have held, however, that the “failure 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. Scroggins, 599 F.3d 433, 448 

(5th Cir. 2010) (internal quotation marks and citation omitted).

Dioubate did not raise the challenges to the extended traffic stop and K9 sniff search in the district court, so he has waived those issues on appeal. See 

id. For “good measure,” however, we shall consider them issues under the 

plain error standard of review. See id.; see also United States v. Baker, 538 

F.3d 324, 328-29 n.1 (5th Cir. 2008).

The arresting officer testified that (1) neither Dioubate nor his passenger

could provide the address of their ultimate destination, (2) the passenger 

refused to make eye contact with the officer, was breathing heavily, and could 

not provide identification, and (3) Dioubate exhibited signs of anxiety during 

questioning by the officer. As the totality of the circumstances provided 

reasonable suspicion that Dioubate might have been involved in criminal 

activity, the officers did not violate his Fourth Amendment rights by detaining 

him until the K-9 unit arrived on the scene. See United States v. Arvizu, 534 

U.S. 266, 274 (2002); United States v Pack, 612 F.3d 341, 345-46, 361 (5th Cir. 

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2010). Dioubate has not shown any error, plain or otherwise, related to the 

extended traffic stop and the delay in waiting for the K-9 unit to arrive. See

Pack, 612 F.3d at 361-62. Dioubate’s challenge to the qualifications of the K-9 

was a factual issue that could have been resolved if he had raised it properly 

in the district court, so he cannot succeed on plain error review. See United 

States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001). Even assuming we were at 

liberty to review the fact issue for plain error, Dioubate has neither 

demonstrated that the purported effort is plain nor established why the error 

warrants discretionary relief under the fourth prong of plain error review. See

United States v. Ellis, 564 F.3d 370, 378 (5th Cir. 2009) (holding that error “does 

not inevitably affect the fairness, integrity, or public reputation of judicial 

process and proceedings”); see also United States v. Chavez-Trejo, 533 Fed. 

Appx. 382, 385 (5th Cir. 2013) (unpublished) (refusing to correct plain error 

when the complaining party made no showing as to prong four).

We review a trial court’s evidentiary ruling for abuse of discretion, 

subject to harmless error review. United States v. Ebron, 683 F.3d 105, 133 

(5th Cir. 2012). The Secret Service agent’s opinion regarding the reliability of 

the magnetic card reader was based on personal experience and not on 

scientific or technical knowledge. The district court did not abuse its discretion 

in allowing the agent to testify as a lay witness. See id.; FED. R. EVID. 701. 

Moreover, any error was harmless because there was not a reasonable 

probability that the conviction turned on the agent’s testimony, given the other 

strong evidence of Dioubate’s guilt. See United States v. Mendoza-Medina, 346 

F.3d 121, 127 (5th Cir. 2003).

The judgment of the district court is AFFIRMED.

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