IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30624

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EMANUEL CHARLES, III,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:08-CR-11-1

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Emanuel Charles, III, appeals his conviction and sentence for possessing

with intent to distribute 50 grams or more of cocaine base. See 21 U.S.C.

§ 841(a)(1), (b)(1)(A). He contends that the district court erred when it denied

his motion to suppress evidence that he maintains was obtained in violation of

his Fourth Amendment rights. Charles makes no argument regarding his

sentence for possessing with intent to distribute cocaine. We affirm Charles’s

United States Court of Appeals

Fifth Circuit

F I L E D

October 8, 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. 11-30624

convictions but vacate his sentence on his cocaine base conviction and remand

for resentencing on that count.

A district court’s findings on a motion to suppress are reviewed for clear

error, and the district court’s ultimate conclusions about whether the Fourth

Amendment was violated are reviewed de novo. United States v. Pack, 612 F.3d

341, 347 (5th Cir.), opinion modified on denial of reh’g, 622 F.3d 383 (5th Cir.

2010). The evidence is reviewed in the light most favorable to the prevailing

party—in this case, the Government. See id. The clear error standard is

particularly strong if denial of a suppression motion is based on in-court

testimony, because the judge had the opportunity to observe witness demeanor. 

United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005).

Charles is incorrect in contending that the Fourth Amendment was

violated because law enforcement agents stopped him on a pretext while he was

under surveillance for narcotics trafficking. “[A]n ulterior motive [does not] strip

[law enforcement] agents of their legal justification” for a traffic stop. Whren v.

United States, 517 U.S. 806, 812 (1996). Thus, if a traffic stop is otherwise valid,

it does not matter that it may have been “a mere pretext for a narcotics search.” 

Id. at 813 (internal quotation marks and citation omitted). A traffic stop is valid

if it is based on “probable cause to believe that a driver is violating

any . . . applicable traffic . . . regulation[ ].” Id. at 817 (internal quotation marks

and citation omitted).

The district court resolved in the Government’s favor the conflict in the

evidence concerning Charles’s traffic violations. Because that resolution was

made after a hearing in which the district court heard testimony and observed

the witnesses, Charles’s burden to show clear error is particularly heavy, and

Charles fails to shoulder it. Although Charles denied, for example, running a

red light, law enforcement agents swore to the contrary. Charles offers no

persuasive reason why we should disturb the district court’s credibility

determination on this point. See Santiago, 410 F.3d at 197.

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Additionally, we reject the contention that the district court erred when

it found that the valid stop of Charles’s vehicle was followed by valid consent to

its search. A search based on valid consent satisfies the Fourth Amendment. 

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In this court, Charles did

not address the district court’s determination concerning consent until he filed

his reply brief. By failing to raise the issue in his opening brief, Charles

abandoned it. See United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir.

2005).

Neither can Charles prevail on his challenge to the evidence seized from

his residence. The Fourth Amendment permits a search based on a warrant

issued on probable cause. U.S.CONST. AMEND. IV. The district court determined

that the narcotics found in the vehicle supplied the probable cause needed to

search Charles’s residence. Although evidence derived from the exploitation of

an illegal search or seizure must ordinarily be suppressed, see Brown v. Illinois,

422 U.S. 590, 602-03 (1975), the search of Charles’s vehicle was not illegal.

The Fair Sentencing Act of 2010 (FSA) amended, inter alia,

§ 841(b)(1)(A)(iii) by increasing from 50 grams to 280 grams the amount of crack

cocaine a defendant must possess before he is subject to a 10-year mandatory

minimum sentence. See PUB. L. NO. 111-220, § 2(a)(2). In United States v.

Dorsey, 132 S. Ct. 2321, 2329-35 (2012), the Court held that the penalties

prescribed by the FSA apply to sentences imposed after the FSA’s enactment in

August 2010 for cocaine base offenses that occurred before the enactment. 

Charles committed his crack cocaine offense in April 2007, and he was sentenced

in June 2011. Thus, Dorsey requires that Charles be sentenced under the FSA. 

See 132 S. Ct. at 2329-35.

Charles’s convictions are AFFIRMED. Charles’s sentence on his

conviction for possessing with intent to distribute 50 grams or more of cocaine

base is VACATED, and this case is REMANDED for resentencing on the crack

cocaine conviction consistent with Dorsey.

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