IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50127 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME HUESCA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. SA-98-CR-145-1 - - - - - - - - - -

October 21, 1999

Before POLITZ, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Jaime Huesca argues that the district

court erred by denying his motion to suppress because the facts

presented at the suppression hearing show that the U.S. Border

Patrol agents did not have a reasonable suspicion to support the

stop of Huesca’s vehicle. In the context of the denial of a

motion to suppress, we review the district court’s factual

findings for clear error and the ultimate conclusion, that the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. -2-

facts supported a reasonable suspicion sufficient to justify an

investigatory

stop, de novo. United States v. Inocencio,

(5th

Cir. 1994).

A roving Border Patrol agent may stop a vehicle if the

agent’s observations lead him reasonably to suspect that the

occupants of a particular vehicle may be involved in criminal

activity. See United States v. Brignoni-Ponce,

(1975). The factors to be taken into account in determining

whether “reasonable suspicion” exists, include: the

characteristics of the area; its proximity to the border; the

usual patterns of traffic on a particular road and previous

experience with alien traffic; information about recent illegal

border crossings; the driver’s behavior; and the vehicle’s

appearance, including the type of vehicle, appearance of being

heavily loaded, number of passengers, or passengers’ behavior.

.

Huesca’s vehicle was approximately 84 miles from the U.S.

border when it was stopped by the Border Patrol agents, and there

was no indication that Huesca had just come from the border.

However, all of the other facts articulated by the Border Patrol

agents at the suppression hearing indicate that the remaining

factors all support the existence of a reasonable suspicion to

stop Huesca’s vehicle. The district court did not err in

concluding that all of the specific facts considered together No. 99-50127 -3-

supported the stop. See United States v. Aldaco,

(5th Cir. 1999).

Huesca also contends that, although he granted his consent

for the agents to search his vehicle, this consent was not

voluntarily given. This is an issue of fact that Huesca has

raised for the first time on appeal. See United States v.

Cooper,

(5th Cir. 1995)(voluntariness of consent

is a question of fact). An issue of fact capable of resolution

by the district court can never constitute plain error. See

United States v. Lopez,

(5th Cir. 1991). This

issue is therefore foreclosed on appeal.

Consideration of this issue is alternatively precluded on

appeal because Huesca failed to argue this issue in his motions

to suppress and waived his right to appeal all issues except for

those raised in his motions to suppress. See United States v.

Melancon,

(5th Cir. 1992)(defendant may waive

his statutory right to appeal in a valid plea agreement if the

waiver is knowing and voluntary).

AFFIRMED.