United States v. McIntyre

Case: 21-30585 Document: 00516190717 Page: 1 Date Filed: 02/03/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

February 3, 2022

No. 21-30585

Lyle W. Cayce

Summary Calendar

Clerk United States of America,

Plaintiff—Appellee, versus

John Edward McIntyre,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:20-CR-213-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

John Edward McIntyre pleaded guilty to possession with the intent to distribute methamphetamine and possession of a firearm in furtherance of drug trafficking. He now appeals the district court’s denial of his motion to suppress evidence, arguing that the incriminating evidence at issue was

Case: 21-30585 Document: 00516190717 Page: 2 Date Filed: 02/03/2022

No. 21-30585 discovered pursuant to a pretextual traffic stop. He correctly concedes that his argument is foreclosed by Whren v. United States, 517 U.S. 806 (1996), but he wishes to preserve it for further review. The Government moves for summary affirmance or, in the alternative, for an extension of time to file a brief.

As the Government asserts and as McIntyre concedes, the sole issue raised on appeal is foreclosed by Whren. Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper.

Accordingly, the Government’s motion for summary affirmance is GRANTED, and the district court’s judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.