IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50331

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOHN B. ALMAGUER, also known as John Almaguer, also known as Juan 

Almaguer, also known as John Berban Almaguer, also known as John B. 

Almagues,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:11-CR-626-1

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

John B. Almaguer pleaded guilty to possession with intent to distribute 

methamphetamine and possession of a firearm in furtherance of a drug 

trafficking crime. As part of his plea agreement, Almaguer waived his right to 

appeal his conviction and sentence. However, he reserved the right to appeal 

the district court’s denial of his motion to suppress the evidence. On appeal, 

* 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

January 7, 2015

Lyle W. Cayce

Clerk

 

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No. 13-50331

he argues that the district court erred by denying his motion to suppress and 

seeks to challenge the reasonableness of his sentence. The Government seeks 

enforcement of the waiver provision.

When reviewing the denial of a motion to suppress evidence, we review 

factual findings for clear error and the ultimate constitutionality of law 

enforcement action de novo. United States v. Cherna, 184 F.3d 403, 406 (5th 

Cir. 1999). The evidence is viewed in the light most favorable to the prevailing 

party, in this case, the Government. See United States v. Allen, 625 F.3d 830, 

834 (5th Cir. 2010). Almaguer challenges the district court’s factual finding 

that the search warrant was issued prior to the search.

The district court’s finding that the warrant was issued at 11:10 a.m., 

prior to the search of Almaguer’s residence, is plausible in light of the record 

as a whole. See United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). 

Accordingly, Almaguer’s argument that the evidence should be suppressed 

because the search took place prior to the issuance of the search warrant is 

without merit.

Almaguer also challenges the district court’s conclusion that the officers 

relied on the warrant in good faith. We engage in a two-step inquiry when 

reviewing a district court’s denial of a defendant’s motion to suppress when a 

search warrant is involved. Cherna, 184 F.3d at 407. First, we determine 

whether the good faith exception to the exclusionary rule applies and, second, 

whether the magistrate had a substantial basis for concluding that probable 

cause existed. United States v. Mays, 466 F.3d 335, 343-44 (5th Cir. 2006); 

Cherna, 184 F.3d at 407. If the good faith exception applies, then no further 

analysis is conducted, and the district court’s denial of the motion to suppress 

will be affirmed, unless the case presents a novel question of law whose 

resolution is necessary to guide future action. Mays, 466 F.3d at 343.

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No. 13-50331

Almaguer’s argument that the affidavit underlying the search warrant 

is a bare bones affidavit is unavailing. A bare bones affidavit is one that 

contains wholly conclusional statements and is “so lacking in indicia of 

probable cause as to render official belief in its existence entirely 

unreasonable.” United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992) 

(internal quotation marks and citation omitted). The affidavit underlying the 

search warrant in this case is not wholly conclusional because it included 

information about when and where the contraband was observed by a 

confidential informant, it indicated that the informant had previously given 

reliable information, and it indicated how the affiant was confident that the 

person observed to be in possession of the contraband would be at the location 

sought to be searched. See United States v. Pope, 467 F.3d 912, 920 (5th Cir. 

2006).

Almaguer’s argument that Detective Sendejo did not rely on the warrant 

in good faith because he did not notice the erroneous time set forth on the 

warrant is unavailing. A technical error is insufficient to invalidate a warrant. 

United States v. Benavides, 854 F.2d 701, 701-02 (5th Cir. 1988). The district 

court did not err in concluding that the good faith exception applied in this 

case. See United States v. Leon, 468 U.S. 897, 923 (1984); Mays, 466 F.3d at 

343. Consequently, the denial of the motion to suppress is affirmed.

The appeal waiver in the plea agreement precludes an appeal from

Almaguer’s sentence. Thus, he may not raise the current sentencing issues. 

See United States v. Higgins, 739 F.3d 733, 736 (5th Cir.), cert. denied, 134 S. 

Ct. 2319 (2014). The challenge to the sentence is dismissed.

AFFIRMED IN PART; DISMISSED IN PART.

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