NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1852 _____________

UNITED STATES OF AMERICA

v.

JEHIEL PENA ESTRADA, Appellant _____________

Appeal from the District Court of the Virgin Islands District Court No. 3-19-cr-00063-001 District Judge: Honorable Curtis V. Gomez _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on December 7, 2020

Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges

(Filed: December 10, 2020) _______________

OPINION ________________

SMITH, Chief Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Jehiel Pena Estrada was charged with possession of cocaine under

(a). After the District Court denied his motion to suppress the evidence, he

pleaded guilty to the charge. Because the District Court did not clearly err in

finding that Estrada consented to the search that led to the discovery of the cocaine,

we will affirm the denial of the motion to suppress.

I.

The District Court held a hearing on Estrada’s motion to suppress on

December 2, 2019. Because we write for the parties, we briefly summarize only

the evidence most relevant to our disposition.

Just after midnight on September 17, 2019, Estrada and another individual,

Billy Iglesias, arrived by boat in St. Thomas’s Crown Bay Marina. Customs and

Border Protection (CBP) agents Carlton Evans and Kevin Florence, who had been

tracking the arrival of the boat, encountered Estrada and Iglesias in the marina

parking lot. According to the CBP agents, Evans approached and spoke to Estrada

and Iglesias, but Estrada indicated that he did not understand English. Because

Florence had a better knowledge of Spanish than Evans, Florence asked Estrada in

Spanish for permission to search the boat and his person. Estrada responded “sí”

(yes).

Evans then walked over to Iglesias, at which time he observed a vacuum-

sealed plastic package of cash protruding from Iglesias’s pocket. Because

2 evidence of this nature can be indicative of illegal activity, Evans handcuffed

Iglesias and searched him. Evans told Florence to handcuff Estrada, which he did.

Florence then searched Estrada and found two baggies containing cocaine in his

pockets.

It was undisputed that the CBP agents kept their hands on or near their

weapons during the encounter, but never unholstered the weapons. The agents

testified that they neither touched Estrada nor ordered him to do anything during

the encounter. They also testified that their voices were calm and non-

confrontational. Estrada, in contrast, testified that the agents yelled at him in

English and one agent placed a hand on him. He testified that he did not

understand anything the agents said to him and was never asked in Spanish

whether he consented to a search.

The District Court denied Estrada’s suppression motion from the bench. It

found that Estrada voluntarily consented to the search, and that the agents’

placement of their hands on their weapons did not undermine the voluntariness of

the consent. The District Court also determined that the decision to handcuff

Estrada after he provided consent did not negate that consent.

Estrada ultimately pleaded guilty, reserving the right to challenge on appeal

the denial of the motion to suppress. This appeal followed.

3 II.1

A District Court’s determination of consent is a finding of fact subject to

clear error review. United States v. Lockett,

(3d Cir. 2005);

United States v. Kim,

, 954–55 (3d Cir. 1994). A factual finding is

clearly erroneous when, after reviewing the entire record, we are left with the

“definite and firm conviction that a mistake has been committed.” United States v.

Lowe,

(3d Cir. 2015) (quoting United States v. Price,

, 276–77 (3d Cir. 2003)).

III.

Estrada contends that the District Court’s consent finding is clearly

erroneous because: (1) the CBP agents did not communicate with him in Spanish;

and (2) he was subjected to a show of force that undermined the voluntariness of

any consent he might have appeared to give.2 We are not persuaded.

Although its discussion was relatively brief, it is apparent that the District

Court considered the totality of the circumstances and credited the agents’ version

of events in which Estrada was asked in Spanish to consent to the search and

1 The District Court had jurisdiction under

and

, and we have jurisdiction under

. 2 According to Estrada, the agents yelled, wore camouflage, kept their hands on their weapons, and did not read him the Miranda warnings or tell him he was free to leave. The only fact disputed at the hearing was whether the agents yelled; all of the remaining facts upon which Estrada relies were undisputed. 4 Estrada voluntarily and without coercion provided such consent. After considering

Estrada’s arguments and reviewing the record as a whole, we are not left with the

“definite and firm conviction” that the District Court’s consent finding was

erroneous. See Lowe,

. Accordingly, we will uphold that finding.

III.

Because our decision concerning consent is determinative, we need not

reach Estrada’s remaining arguments. For the foregoing reasons, we will affirm

the District Court’s denial of the motion to suppress evidence. Because no other

issues were appealed, the conviction and sentence will be affirmed.

5