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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60243
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DONATO GARCIA MALDONADO,
Defendant-Appellant.
____________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_____________________________________________________
(January 6, 1995)
Before WHITE, Associate Justice (Ret.),1 BARKSDALE and PARKER,
Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Donato Garcia Maldonado's principal claim is that, pursuant to
Minnesota v. Dickerson, 113 S. Ct. 2130 (1993), seizure of heroin
from his boot was outside the lawful scope of a pat-down for
weapons pursuant to Terry v. Ohio, 392 U.S. 1 (1968); but, we must
address first whether the issue was raised in district court.
Finding that it was not, we review only for plain error. Also at
issue is the denial of a sentencing reduction for acceptance of
responsibility. We AFFIRM.
1
Associate Justice of the United States Supreme Court (Ret.),
sitting by designation.

I.
Maldonado, while driving a pickup truck, was stopped on August
24, 1993, for speeding by Officers Perez and Ruiz of the Duval
County (Texas) Sheriff's Department. When Officer Ruiz inquired
about the truck's ownership, Maldonado would not answer.
Suspecting that the truck had been stolen, Officer Ruiz attempted
a license check while Officer Perez watched Maldonado.
Maldonado appeared nervous and backed away from Officer Perez.
Because of fear for his safety, Officer Perez stayed with
Maldonado. He noticed a bulge in the right front pocket of
Maldonado's trousers, and, suspecting a weapon, asked for
permission to pat Maldonado down, even though Maldonado had stated
he had money in his pocket. Maldonado consented, and the bulge
proved to be money.2 But, based on Maldonado's continuing nervous
behavior, which caused Officer Perez to continue to fear for his
safety, Officer Perez conducted a full pat-down and discovered a
bulge on one of Maldonado's boots. Again suspecting a weapon,
Officer Perez reached into the boot and removed a rounded, duct-
taped package.3
2
When Officer Perez felt the bulge in Maldonado's pocket, he no
longer suspected a weapon, and asked Maldonado to remove the
contents voluntarily. Maldonado complied and removed a bundle of
currency.
3
The package was approximately two and one-half inches by two
inches by two inches. The only indicia of its size are photographs
placed in evidence by the government. They show the package next
to United States currency recovered from Maldonado. One dimension
of the package appears to approximately equal the width of the
currency. We take judicial notice that this is approximately two
and one-half inches. From this scale, we approximate the package's
other dimensions.
- 2 -

Upon removal, Officer Perez was of the opinion that the
package contained drugs, and, with the help of Officer Ruiz,
handcuffed Maldonado and placed him under arrest. Officer Perez
then made a small incision in the package and discovered a black,
sticky substance. Subsequent testing revealed the substance to be
43.8 grams of heroin.
Maldonado was charged with possession of heroin with intent to
distribute. After the district judge refused to allow a
conditional plea of guilty (preserving the suppression claim as to
the heroin removed from Maldonado's boot), Maldonado waived his
right to a jury trial. The suppression motion was included in the
bench trial and was denied. The district judge found Maldonado
guilty as charged. At sentencing, the court denied Maldonado an
acceptance of responsibility reduction, and sentenced him, inter
alia, to 40 months imprisonment.
II.
Maldonado challenges the denials of the suppression motion and
the acceptance of responsibility request.
A.
The findings of fact on the motion to suppress are reviewed
only for clear error, with the record being viewed in the light
most favorable to the government (prevailing party).4 E.g., United
States v. Michelletti, 13 F.3d 838, 841 (5th Cir.) (en banc), cert.
4
"A finding is clearly erroneous when, although some evidence
supports the decision, we are `left with the definite and firm
conviction that a mistake has been committed.'" United States v.
Tello, 9 F.3d 1119, 1122 (5th Cir. 1993) (quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948).
- 3 -

denied, 115 S. Ct. 102 (1994); United States v. Ponce, 8 F.3d 989,
995 (5th Cir. 1993); United States v. Rideau, 969 F.2d 1572, 1576
(5th Cir. 1992) (en banc). The district court's legal conclusions
are reviewed de novo. E.g., Michelletti, 13 F.3d at 841; United
States v. Johnson, 932 F.2d 1068, 1069 (5th Cir. 1991).
1.
Maldonado claims that the seizure of the heroin was outside
the lawful boundaries of a Terry search. In Terry v. Ohio, 392
U.S. 1 (1968), the Court held that the Fourth Amendment permits an
investigatory stop of an individual when a police officer, based on
articulable facts, has a reasonable suspicion that the individual
is involved in criminal activity. Id. at 19; Michelletti, 13 F.3d
at 841. That stop may include "a reasonable search [of the
individual] for weapons ... where [the officer] has reason to
believe that he is dealing with an armed and dangerous individual."
Terry, 392 U.S. at 27; Michelletti, 13 F.3d at 840; Rideau, 969
F.2d at 1575.
Maldonado does not dispute that the officers were justified in
conducting a Terry search. Rather, relying upon Minnesota v.
Dickerson, 113 S. Ct. 2130 (1993), he maintains that the seizure of
the package from his boot exceeded the lawful scope of the search;
that although Officer Perez was entitled to pat down the outside of
Maldonado's boot, he was not permitted to reach inside and retrieve
the package.
The Court addressed in Dickerson when contraband is seized
lawfully under a Terry search. It held that if, during a Terry
- 4 -

weapons search, a police officer "feels an object whose contour or
mass makes its identity [as contraband] immediately apparent", its
seizure is lawful. Dickerson, 113 S. Ct. at 2137. As Dickerson
reaffirmed, the purpose of a Terry search is to eliminate the
threat of violence to an investigating officer, and is therefore
"limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby."
Dickerson, 113 S. Ct. at 2136 (quoting Terry, 392 U.S. at 26).
In Dickerson, a police officer conducting a Terry search
detected a small lump in the detainee's jacket pocket. 113 S. Ct.
at 2133. The officer knew that the lump was not a weapon; upon
further manipulating it with his fingers, he suspected it was crack
cocaine. Id. at 2138. But, because the officer had already
concluded that the lump was not a weapon, the search had already
ceased to be for the lawful purpose of checking for weapons. The
Court held that the object could have been seized lawfully only if
its identity as contraband was immediately apparent while the
officer was still searching for a weapon. Id. at 2137. Restated,
so long as an officer is investigating an object that reasonably
may be a weapon, the Terry search may continue.5
5
As the Eighth Circuit recognized, in applying the "immediately
apparent" standard to the facts in Dickerson, the Supreme Court
"emphasized that the officer determined that the lump was
contraband only after `squeezing, sliding and otherwise
manipulating the contents of the defendant's pocket -- a pocket
which the officer already knew contained no weapon'". United
States v. Hughes, 15 F.3d 798, 802 (8th Cir. 1994) (quoting
Dickerson, 113 S. Ct. at 2138) (emphasis added).
- 5 -

Officer Perez testified that he patted down Maldonado's boots
because detainees "have sometimes concealed weapons in" them. When
he noticed the bulge on one boot, he asked Maldonado "if it was a
knife, a gun, a grenade or something." Our inquiry is whether
Officer Perez could have believed reasonably that the item
concealed in Maldonado's boot was a weapon (Dickerson issue).6
Here, the Dickerson issue has two components: after detecting the
bulge on Maldonado's boot, was Officer Perez justified in reaching
into it; and, if so, was he justified in removing the object?
Guiding our analysis is the rule that
[i]n assessing the reasonableness of an officer's
actions, "it is imperative that the facts be judged
against an objective standard: would the facts
available to the officer at the moment of the
seizure or the search `warrant a man of reasonable
caution in the belief' that the action was
appropriate?".
Rideau, 969 F.2d at 1574 (quoting Terry, 392 U.S. at 22) (citations
omitted).
But, first, we must determine whether the Dickerson issue was
raised in district court; if not, we review only for plain error.
E.g., United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en
banc). As hereinafter demonstrated in necessary, considerable (and
perhaps numbing) detail, the Dickerson issue was not presented in
district court. Instead, the issue pressed there was whether,
after removal of the package, it provided probable cause for the
6
Obviously, consistent with Officer Perez's testimony, the
government does not contend that Officer Perez thought, in the
alternative, that the bulge he felt on the outside of the boot
resulted from contraband concealed in it.
- 6 -

subsequent actions taken by the officers.7 At no stage of the
suppression process was Dickerson ever cited to the district court,
even though it was decided approximately three and one-half months
before the motion to suppress was filed, and approximately five
months before the hearing.
In his motion to suppress, Maldonado sought, among other
things, suppression of "illegal contraband". The motion provided
only very general statements in support, asserting in part that
"contraband found on" Maldonado was "the product of an illegal
stop, arrest, search and seizure."
At the hearing, in orally presenting reasons for suppression,
prior to the testimony, Maldonado presented three bases: first,
that Maldonado had not been speeding; second, that the pat-down was
without consent; and third, "that there was no probable cause to
open the package" found in the boot. For the third reason,
Maldonado's lawyer stated:
But assuming that the Court rules in both of those
instances [speeding and consent to pat-down] in
favor of the Government, in the continued search
[Officer Perez] finds a package in [Maldonado's]
boot. Now, there is no probable cause to open that
package, you know. So that would be the third
element, that after they found it then they opened
[it] without smell, without anything, and that
there was no probable cause to open the package.
Just the fact that he had a package in his boot I
7
Conversely, the probable cause issue is not presented here.
Except for possible reference to it in the table of contents to
Maldonado's brief ("Is duct tape, of and by itself, sufficient
probable cause?"), there is no discussion of this issue in the
brief. Accordingly, we do not consider it. E.g., Zuccarello v.
Exxon Corp., 756 F.2d 402, 407-08 (5th Cir. 1985) (failure to brief
issue in accordance with Fed. R. App. P. 28(a) constitutes waiver
of issue on appeal).
- 7 -

feel was insufficient in and of itself to open that
package. And that was obviously not a weapon.
(Emphasis added.)
It is possible that the comments in italics can be read to
bump up against the Dickerson issue. But, even assuming that
Maldonado's lawyer was raising it, these comments did not present
the issue to the district court with sufficient specificity. The
comments could just as easily -- and properly -- be understood to
refer to action taken post-removal (in the words of Maldonado's
lawyer, "after they found it [the package]"), and not to challenge
the removal at all. This is apparent from the testimony adduced
subsequently; it fails likewise to identify the issue.
On questioning by the government, Officer Perez stated why he
reached inside the boot; the bulge he felt on the outside of the
boot caused him to suspect a weapon was concealed inside. But, he
was not asked if, when he reached inside and made contact with the
package, he made a simultaneous determination then (it was
"immediately apparent") that it was either a weapon or contraband.
Nor was he asked, in the alternative, whether he decided then that
the item was not a weapon (the lawful Terry search would then end),
but on further feel or manipulation of the item, decided that it
was contraband. Instead, in describing the steps he took, Officer
Perez stated that in conducting the pat-down
I also told [Maldonado] to stand firm because I was
going to check down towards his boots because they
have sometimes concealed weapons in their boots. I
patted outside and I felt a bulge in his right
boot, and then I told him that I was going to reach
in there to see what it was. I asked him if it was
a knife, a gun, a grenade or something, because we
- 8 -

never know what it could be. I reached in there
and I pulled out a packet, duct-taped colored round
package.
(Emphasis added.) In short, it appears that Officer Perez reached
in and removed the package in one continuous motion.8
The closest the testimony comes to the Dickerson issue is on
cross-examination of Officer Perez by Maldonado's lawyer:
Q
Now, before you checked his boots, you told
him to stand in front of you so you could check his
boots, is that --
A
Yes, I was always talking to him at the time.
That was --
Q
Okay. And he was answering?
A
Yeah, he was, he was obeying what I was
telling him but he was telling, you know, it would
be all right. Because I didn't know the person at
the time and at that time, you know, the way he was
acting, for my safety, you know, I was with him all
the time.
Q
Okay. Now, after you checked his boots, you
found that little round ball in the boots, could
you tell it was not a gun?
A
I could tell it was not a gun.
Q
Could you tell it was not a knife?
A
Yes, I could tell.
Q
Okay. Could you tell what was in that little
ball?
A
At that moment, no.
Q
Okay. Now, from there, you and Officer Ruiz
handcuffed Mr. Maldonado; is that correct?
8
Needless to say, it is quite arguable that this was the safest
procedure to follow. For example, by delaying with his hand in the
boot in order to try to determine the nature of the item, Officer
Perez could have arguably placed himself in a vulnerable position
to attack by Maldonado, a much larger man.
- 9 -

A
From there we took him behind the truck and we
restrained him.
Q
How did you restrain him?
A
Well, I took him by the arm and took him over
there behind the truck and told him --
Q
And Officer Maldonado [sic] handcuffed him?
A
Right there I told Mr. Maldonado what he had
there. He didn't know what it was, you know. He
had, he didn't know about it.
Q
Okay. And so then you handcuffed Mr.
Maldonado right after that?
A
I handcuffed him, I believe.
Q
Okay.
A
Because I suspected there was some kind of a
drug.
Q
Okay.
A
I have been in similar cases, I've seen some
drugs in duct tape and stuff like that.
Q
Okay. And then it was after you handcuffed
him that you took a knife from Mr. Ruiz and opened
the bag?
A
We just put a little incision to see what it
was.
Q
Okay, but it was after he was handcuffed,
that's what I'm asking.
A
At the time, I believe he was restrained.
When I found the incision, I put the cuffs in
there, [and] I told him about his Mirandas....
(Emphasis added.)
Concerning finding the package in the boot, it is unclear from
the pertinent questions (in italics) whether Maldonado's lawyer was
asking Officer Perez if he determined that the package was not a
weapon while he checked inside the boot, as opposed to after he
- 10 -

removed it. Maldonado's lawyer asked Officer Perez about what he
found "after you checked his boots", not what he found while in the
process of doing so. Furthermore, in conjunction with next asking
Officer Perez whether Maldonado was handcuffed after Officer Perez
determined that the package was not a weapon, it appears that
Maldonado's lawyer was referring to the point in time between when
Officer Perez removed the package and restrained Maldonado.
Moreover, in conjunction with the sequence of events, the
question "[c]ould you tell what was in that little ball", to which
Officer Perez replied, "[a]t that moment, no", can be understood to
be referring likewise to after Officer Perez had removed the
package, but before he made an incision in it (after restraining
Maldonado). Based on Officer Perez's answer, in which he used the
phrase "at that moment", it appears that Officer Perez understood
the question to concern post-removal. This is consistent with
Officer Perez's subsequent answers that he restrained Maldonado and
then made an incision in the package because he (Officer Perez)
"suspected there was some kind of a drug", had "been in similar
cases", and had "seen some drugs in duct tape".
Argument presented at the hearing by Maldonado's lawyer after
the testimony further indicates that he was concerned only with
post-removal probable cause. After asserting again that there was
a factual dispute as to whether Maldonado was speeding, he stated:
But assuming the Court should find that [Maldonado]
was in fact speeding, once they found the package,
it was in their custody and they arrested him
without knowing what was in there, they had the
package in their custody, I would think that they
... should take it in and get a warrant for it at
- 11 -

that time, if they had probable cause to open it.
There's nothing, no reason to open that package
there. Plus, they had arrested him illegally
because they didn't have any reason to arrest him
at that time. It appears to me from the facts that
he was under arrest. [Officer] Ruiz testified that
they put the handcuffs on and then they opened the
package. And I think they put ... the carriage
before the horse.... That's all I've got.
(Emphasis added.)
In ruling, the district court did not address the Dickerson
issue. (Because it was not raised.) It stated in part:
The pat-down occurred after permission was given
for the money, but with respect to the boot, the
Court finds that there was no consent given. The
Court does not believe that that was a consensual
pat-down. The Court finds that the defendant was
told to stay put, I'm going to pat you down. At
that point I believe that the officer was more in
control than asking permission and was not asking
permission but was telling the defendant what to
do.... Officers have a right to be concerned with
their own safety and to take reasonable precautions
to assure ... that they are safe and other members
of the public are safe. The officer did nothing
untoward in simply checking the defendant for
weapons to protect himself.... The events
occurring after that were recognized by Officer
Perez to be a drug find. Perez recognized the
wrapped ball to be drugs, having been in the
circumstance before, and he is in fact the one that
opened the ball of heroin. There is no need at
that point ... to call in a judicial inquiry.
[Officer Perez] has probable cause, recognizing the
nature of the contraband and being an automobile
stop, to make reasonable inquiry as to what it was
and to search it, and searching it reasonably by
making a small incision, heroin was recognized, the
defendant was lawfully arrested. Motion to
suppress denied.
As reflected above, the district court ruled on the issues
presented it. Had the Dickerson issue been presented, testimony
could have been taken, and argument received, on that issue; and
the district court would have dealt with it. As stated, because
- 12 -

the issue was not raised in the district court, we review only for
plain error. Fed. R. Crim. P. 52(b) ("Plain errors or defects
affecting substantial rights may be noticed although they were not
brought to the attention of the court.").9
2.
As discussed in United States v. Calverley, plain error
analysis includes four steps. See United States v. Olano, 113 S.
Ct. 1770 (1993); United States v. Rodriguez, 15 F.3d 408 (5th Cir.
1994). First, there must be an error; that is, "a deviation from
a legal rule in the absence of a valid waiver". Calverley, 37 F.3d
at 162. Second, the error must be "plain"; errors are plain if
they "are so conspicuous that `the trial judge and prosecutor were
derelict in countenancing [them], even absent the defendant's
timely assistance in detecting [them]'". Id. at 163 (quoting
United States v. Frady, 456 U.S. 152, 163 (1982)).10 Third, the
plain error must be prejudicial: "Absent a showing that a
9
The government does not contend that the Dickerson issue was
not raised in district court. It is imperative that parties to an
appeal be vigilant in ensuring that we are advised whether an issue
is being presented for the first time on appeal. Although we
review the record for that purpose, this review, obviously, occurs
only after the briefs have been filed. Needless to say, the briefs
should cover this point, not only because we want the benefit of
the parties' review of the record (in that they tried the case,
they should know it best), views, research, and opinions on this
point, but also because this point drives numerous factors critical
to appellate review, including the standard of review and questions
asked at oral argument.
10
As our en banc court noted in Calverley, we must be mindful to
give sufficient weight to the "plain" element of plain error
analysis. Id. at 163-64. In United States v. Olano, 113 S. Ct.
1770, 1776 (1993), "plain" was described as synonymous with "clear"
or "obvious".
- 13 -

substantial right has been compromised, no remedy is available."
Id. at 164. Fourth, and finally, if the first three criteria are
satisfied, we still have discretion whether to correct the error;
correction is not mandatory. Id. "[P]lain forfeited errors
affecting substantial rights should be corrected on appeal only if
they `seriously affect the fairness, integrity, or public
reputation of judicial proceedings.'" Id. (quoting United States
v. Atkinson, 297 U.S. 157, 160 (1936)).
As demonstrated by the detailed review of the suppression
proceeding, and especially because of the confusion concerning the
only testimony touching on the Dickerson issue (that pertaining to
"after you checked his boots, you found that little round ball in
the boots"), it is far from clear that there was error. But, even
assuming error, it was not "plain". Accordingly, we proceed no
further in our analysis.

B.
The district court's refusal to reduce Maldonado's offense
level for acceptance of responsibility under � 3E1.1 of the
Sentencing Guidelines is reviewed under a standard "even more
deferential than a pure clearly erroneous standard." United States
v. Tello, 9 F.3d 1119, 1122 (5th Cir. 1993) (citation omitted).
The ruling "should not be disturbed unless it is without
foundation." United States v. Robertson, 872 F.2d 597, 610 (5th
Cir.), cert. denied, 493 U.S. 861 (1989) (citations omitted).
Guidelines � 3E1.1(a) states that the reduction is in order
only "[i]f the defendant clearly demonstrates acceptance of
- 14 -

responsibility for his offense". Comment 2 to � 3E1.1 provides
that "[t]his adjustment is not intended to apply to a defendant who
puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse."
Maldonado seeks to excuse putting the government to trial by
noting that the district court did not permit him to enter a
conditional plea (to preserve his right to appeal his Fourth
Amendment claim). Accordingly, he maintains that he accepted
responsibility because, apart from the challenge to the seizure of
the heroin, he "stipulated to everything that could be stipulated"
and waived his right to a jury trial.
Rule 11(a)(2) of the Federal Rules of Criminal Procedure
permits entry of a conditional guilty plea only "[w]ith the
approval of the court". As our court has stated, a district court
is "free to reject a conditional plea for any reason or no reason
at all." United States v. Bell, 966 F.2d 914, 916 (5th Cir. 1992).
Given the district court's absolute discretion, we decline, in
reviewing its acceptance of responsibility ruling, to impose any
consequence on its earlier refusal to allow a conditional plea.
When a defendant elects to go forward with trial, comment 2 to
� 3E1.1 states that it is a "rare situation" when the defendant may
nonetheless qualify for acceptance of responsibility. The stated
example is when a defendant goes to trial only to "preserve issues
that do not relate to factual guilt". Maldonado asserts that his
- 15 -

motion to suppress was not related to factual guilt; thus, that his
case falls within that "rare situation".11
Maldonado was charged with possession of heroin with intent to
distribute. The dispositive evidence was the very evidence he
sought to suppress -- the heroin found in his boot. The district
court determined that this evidence was both necessary and
sufficient to support Maldonado's conviction. As a result, there
was nothing more of consequence for Maldonado to admit or accept
responsibility for. Accordingly, the district court concluded that
a
challenge to the admissibility of the evidence is
indistinguishable from a challenge to factual guilt.12 Indeed,
Maldonado's only practical defense was to challenge the
admissibility of the heroin. Under these circumstances, the
rejection of acceptance of responsibility was not "without
foundation".
11
The comment's examples of matters "[unrelated] to factual
guilt" are "constitutional challenge[s] to a statute" and
"challenge[s] to the applicability of a statute to [specific
conduct]". Obviously, these instances are much further removed
from "factual guilt" than a challenge to the very evidence
establishing factual guilt.
12
At sentencing, the district court stated:
[U]nless you suppress the evidence, there can be no
defense because the charge was possession....
[W]hat else [could you] plead with drugs in the
boots? It's hard to plead lack of knowledge when
you've got a bulge in your boot and you go around
limping
because
...
you're
stepping
on
something.... If the effort [to suppress] would
have been successful, there would have been no
successful prosecution ... because this was
basically a possession issue.
- 16 -

III.
For the foregoing reasons, the judgment is
AFFIRMED.
Justice White concurs in the judgment of affirmance.
- 17 -