Case: 09-40778 Document: 00511131092 Page: 1 Date Filed: 06/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2010
No. 09-40778
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TROY KEITH LOCKETT,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:07-CR-66-1
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Troy Keith Lockett was indicted for possessing a firearm after having been
convicted of a felony. See 18 U.S.C. § 922(g)(1). The indictment followed
Lockett’s arrest by the Groves (Texas) Police Department after a police officer
saw Lockett throw a weapon from the front, passenger-side window of a moving
automobile and another officer found the weapon on the ground. A jury
convicted Lockett as charged. Lockett appeals the denial of his motion to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40778
suppress evidence and appeals his conviction and sentence to 290 months of
imprisonment. We affirm.
Lockett urges five points of error. He contends that his conviction was the
result of an unconstitutional search and seizure and that there was not enough
evidence to support the verdict. He contends further that the enhancement of
his sentence was improper because he did not have timely notice of the
Government’s intention to seek enhancement. Additionally, he contends that
enhancement was improper because the indictment did not properly allege that
he had prior convictions meeting enhancement criteria and because the fact of
those prior convictions was not determined by a jury; however, he correctly
concedes that this argument is foreclosed by precedent. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Last, Lockett contends that his
sentence was substantively unreasonable.
On appeal from a ruling on a motion to suppress, the district court’s
factual determinations are reviewed for clear error and its legal conclusions are
reviewed de novo. United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003).
This court may affirm the judgment on any basis established by the record.
Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998). There is no merit to
Lockett’s arguments on this issue. First, contrary to Lockett’s suggestion, no
evidence was seized from his vehicle. The only physical evidence that was used
to convict Lockett, a .380 caliber handgun, was found on the ground where he
had thrown it. This warrantless seizure of abandoned property did not violate
the Constitution. See Abel v. United States, 362 U.S. 217, 241 (1960); United
States v. Berd, 634 F.2d 979, 987 (5th Cir. 1981). And the existence of police
pursuit or investigation at the time of abandonment does not of itself render the
abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.
1973). The police “in no way compelled” Lockett to jettison the gun. Id.
Second, no evidence was introduced that was the result of an illegal
detention of Lockett. Although Lockett had standing to contest a seizure of his
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person that resulted from the police stop, see Brendlin v. California, 551 U.S.
249, 254 (2007), there was no evidence taken from his person. To the extent that
Lockett argues that the police legally stopped his vehicle and were able to
identify him as a result, i.e., that his identity was improperly learned, he states
no constitutional violation. Limited searches and seizures are permissible if
there is a reasonable, articulable suspicion that a person has committed or is
about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21 (1968). In analyzing the
reasonableness of a detention, we apply an objective standard: whether “the
officers [were] objectively authorized to act as they did viewing the totality of the
circumstances.” United States v. Holloway, 962 F.2d 451, 458 & n. 19 (5th Cir.
1992). An investigative detention is permissible if it lasts “no longer than [is]
required to effect the purpose of the stop.” United States v. Jenson, 462 F.3d
399, 404 (5th Cir. 2006). Further, if additional reasonable suspicion arises in the
course of the stop, the detention may continue until the new reasonable
suspicion has been dispelled or confirmed. United States v. Brigham, 382 F.3d
500, 507 (5th Cir. 2004) (en banc).
The GPD officers’ actions easily satisfy this standard. The GPD received
a call advising that a resident was concerned because two men were repeatedly
driving by his residence near midnight while he was outside working on his
vehicle. The men’s vehicle began to drive off when a GPD officer approached it.
The officer saw the vehicle’s only passenger pitch a shiny, chrome-colored object
out the window. Another officer then found two guns on the ground where the
chrome-colored object had landed. These facts created reasonable suspicion to
detain Lockett at least long enough to identify him. See Terry, 392 U.S. at 21.
As in Terry, although the conduct that prompted the stop was ambiguous
and possibly innocent, the “the officers could detain [Lockett] to resolve the
ambiguity.” Illinois v. Wardlow, 528 U.S. 124, 125 (2000). Also as in Terry, the
detention of Lockett was a “minimal intrusion” that permitted the GPD officers
“to briefly investigate further.” Id. at 126. The only evidence in relation to
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Lockett that was revealed by that brief stop was knowledge of his identity. That
evidence was coupled with evidence that was obtained independently of the stop:
the gun, which that Lockett himself provided by abandoning it, and the fact of
his prior conviction. In sum, the evidence used to convict Lockett was not
illegally obtained.
Lockett’s contention that the evidence was insufficient fails as well.
Evidence is sufficient to convict if any rational trier of fact could find that it
establishes guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
318 (1979). Appellate review of the sufficiency of the evidence following a
criminal conviction is “highly deferential to the verdict.” United States v. Redd,
355 F.3d 866, 872 (5th Cir. 2003) (internal quotation marks omitted). To convict
for a violation of § 922(g)(1), the Government must prove that (1) the defendant
had been convicted of a felony, (2) the defendant possessed a firearm in or
affecting interstate commerce, and (3) the defendant knew that he was in
possession of the firearm. Ferguson, 211 F.3d at 885 n.4. It is undisputed that
the Government satisfied the first two elements; Lockett stipulated to his prior
felony, and there was unrefuted evidence that the handgun seen in his
possession had been manufactured in Connecticut and had thus traveled in
interstate commerce. Therefore, the only matter seriously contested is whether
the Government proved knowing possession. Given the police officer’s
uncontradicted testimony that he saw Lockett pitch the gun out the window, the
jury’s finding that Lockett was a felon who possessed a firearm withstands
scrutiny. See United States v. Munoz, 150 F.3d 401, 416 (5th Cir. 1998)
Nor is there merit to Lockett’s contention that his due process rights were
violated because he did not receive timely notice of the Government’s intention
to seek enhancement of his sentence. The notice of enhancement that Lockett
received by way of the presentence investigation report satisfied the
requirements of due process. United States v. Howard, 444 F.3d 326, 327 (5th
Cir. 2006).
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Lockett asserts that his sentence of 290 months exceeds what is needed to
satisfy federal sentencing goals and is therefore unreasonable. We disagree.
Sentencing decisions are reviewed for abuse of discretion. United States v.
Rowan, 530 F.3d 379, 381 (5th Cir. 2008). Being within the properly calculated
guidelines range, Lockett’s sentence is presumed to be reasonable. See United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district court, moreover,
gave extensive consideration to the nature and circumstances of the crime and
to Lockett’s criminal history and determined that the 18 U.S.C. § 3553(a) factors
and the record before it counseled in favor of a sentence at the high end of the
guidelines range. We see no reason to disturb that sentence; but even if we were
to accept Lockett’s suggestion that a shorter sentence would have been more
reasonable, that would be insufficient justification for not deferring to the
district court. See Gall v. United States, 552 U.S. 38, 51 (2007).
The district court correctly denied Lockett’s motion to suppress. Lockett’s
conviction and sentence are AFFIRMED.
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