United States v. Loftin

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                         _________________

                             No. 97-40371

                         (Summary Calendar)
                          _________________


          UNITED STATES OF AMERICA,


                                Plaintiff-Appellee,

          versus


          REGINALD LOFTIN,


                                Defendant-Appellant.



          Appeal from the United States District Court
                For the Eastern District of Texas
                          (1:96-CR-46-1)

                             May 7, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Reginald Loftin appeals his conditional guilty-plea conviction

for conspiracy to possess with intent to distribute cocaine base in

violation of 21 U.S.C. § 846.    We affirm.

     Loftin first argues that the district court erroneously failed



     *
          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that this opinion should not be published and is not precedent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.
to suppress statements that he made following his arrest because

his arrest was invalid.       He contends that his arrest was invalid

because the police lacked the power under state law to rearrest him

on a valid outstanding warrant for another crime for which he had

already posted        bail.   We   need   not   decide    Loftin’s   argument,

however, because we can affirm the district court’s judgment on any

alternative basis supported by the record.                See Sojouner T. v.

Edwards, 974 F.2d 27, 30 (5th Cir. 1992).             In Alabama v. White, 496

U.S. 325, 332, 110 S. Ct. 2412, 2417, 110 L.Ed.2d 301 (1990), the

Supreme Court held that probable cause to arrest may be established

by a sufficiently detailed prediction of a defendant’s future

behavior    by   an    informant   because      “it    demonstrate[s]   inside

information))a special familiarity with respondent’s affairs.”

Id.; see also United States v. Wangler, 987 F.2d 228, 229 (5th Cir.

1993) (finding probable cause where an informant told police that

the defendant would be delivering a shipment of cocaine to a

particular place in a particular car); but see United States v.

Roch, 5 F.3d 894, 897 (5th Cir. 1993) (finding no probable cause

where informant’s statements were not sufficiently detailed). The

record clearly shows that the police had probable cause to arrest

Loftin.    The day before the police arrested Loftin, they received

a call from an anonymous informant who had previously proven

reliable.    The informant told the police that Loftin and another

African-American male would be traveling through Newton County


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transporting a load of cocaine base at approximately 12:00 p.m. the

next day on Highway 87 from Orange, Texas.               The informant further

stated that Loftin would be driving a small, blue rental car, that

another car would be following closely behind him, and that the

cocaine base would be hidden in the second car.                  The police were

familiar with Loftin’s name because they had previously arrested

him for possession of crack cocaine.            When police detected Loftin

traveling    at    the   stated   time   and    place,    they    also   visually

identified him from a photograph before pulling his car over.

Because the information that the informant provided police in this

case was at least as detailed as that found to be sufficient in

White and Wangler, we find that the police had probable cause to

arrest Loftin.       Accordingly, the district court did not err in

refusing to suppress Loftin’s post-arrest statements.

      Loftin also argues that the district court erred in finding

that he lacked standing to contest the search of the second car,

being driven by his codefendant, Andre Teal.              We have reviewed the

record and the parties’ briefs.              We affirm the district court’s

denial of this argument for the reasons stated in the district

court’s order. See United States v. Loftin, No. 1:96-CR-46(1) (E.D.

Tex. Sept. 6, 1996).

      Loftin further argues that his guilty plea was not knowingly

and voluntarily made inasmuch as the district court, in advising

him   of   the    nature   of   the   charge,    referred    to    the   original


                                       -3-
indictment as opposed to the superseding indictment.                   Although the

district court initially referred to the initial indictment, the

government promptly advised the court that a superseding indictment

had been issued. The district court thereafter read the superseding

indictment, and the government recited the factual basis supporting

the charges in the superseding indictment.             Based upon these facts

and our review of the sentencing hearing, we find Loftin’s argument

to be utterly meritless.        See United States v. Johnson, 1 F.3d 296,

302 (5th Cir. 1993) (en banc).

      Finally, Loftin argues that his counsel was ineffective for

advising him not to disclose his past drug activities during the

presentence interview.        He avers that this advice resulted in the

district court’s application of the obstruction-of-justice sentence

enhancement      and   its   denial    of   a   reduction   for   acceptance     of

responsibility.        Even assuming, arguendo, that Loftin’s trial

counsel advised him erroneously, the record reveals that Loftin

attempted     to   persuade     his     codefendant     Teal      to    take   full

responsibility for the drugs and that he asked a person whom he

referred to as “his girl” to find another person who would claim

that the drugs were theirs. The district court accordingly did not

err   in   its   imposition    of     the   obstruction-of-justice        sentence

enhancement      and   its   denial    of   a   reduction   for   acceptance     of

responsibility. See United States v. Pofahl, 990 F.2d 1456, 1481-82

& n.28 (5th Cir. 1993) (affirming obstruction of justice sentence


                                        -4-
enhancement where defendant sent letter to her husband urging him

not to cooperate with authorities). Accordingly, Loftin has failed

to demonstrate the prejudice necessary to establish ineffective

assistance of counsel. See Strickland v. Washington, 466 U.S. 668,

694 (1984).

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.




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