F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 30, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-7100
CLAYTO N H ENRY FENT, (D.C. No. CR -05-07-01-P)
(E.D. Okla.)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before BR ISC OE, B AL DOC K , and BROR BY, Circuit Judges.
D eputy Randy Hass of the Pittsburgh County Sheriff’s Office discovered a
small amount of methamphetamine, ammunition, and a firearm with a defaced serial
number in Defendant’s truck during the course of an inventory search. The
Government charged Defendant in a two-count Indictment with Felon in Possession
of a Firearm, 18 U.S.C. § 922(g), and Possession of a Firearm with an O bliterated
Serial Number, 18 U.S.C. § 922(k). Following the district court’s denial of
D efendant’s motion to suppress, a jury convicted Defendant on both counts. O n
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
appeal, Defendant claims the district court erred in denying his m otion to suppress
evidence found during the search of his vehicle. Defendant also appeals his
sentence, claiming it violates his Sixth A m endm ent rights as discussed in United
States v. Booker, 543 U.S. 220 (2005). W e review both the district court’s denial of
Defendant’s motion to suppress and its sentencing determination de novo and affirm.
See United States v. Dennison, 410 F.3d 1203, 1207 (10th Cir. 2005); United States
v. Stiger, 413 F.3d 1185, 1191 (10th Cir. 2005).
I.
During routine traffic patrol, Deputy Hass “clocked” Defendant’s truck going
61 mph in a 45 mph zone. D eputy Hass testified at the suppression hearing that in
addition to his radar reading, his observation of the vehicle led him to conclude
Defendant was traveling at a rate of speed between 60 and 70 miles per hour. During
the traffic stop, Defendant was unable to produce a driver’s license or proof of
insurance. Using Defendant’s date of birth and social security number to search the
database, Deputy Hass discovered Defendant’s driver’s license was suspended.
Deputy Hass arrested Defendant for driving with a suspended license.
Pursuant to department policy, Deputy Hass impounded Defendant’s truck and
conducted an inventory search. 1 During the course of the inventory search, Deputy
1
Defendant’s attempt to challenge the inventory search in his reply brief is
waived because he failed to raise the issue in his opening brief. Gaines-Tabb v.
ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998). (“[A]rguments
not set forth fully in the opening brief are waived.”); Codner v. United States, 17
(continued...)
2
Hass located a black bag containing a small am ount of methamphetamine,
ammunition and a firearm with a defaced serial number. Faced w ith firearm charges,
Defendant filed a motion to suppress evidence found during the inventory search of
his vehicle. The district court referred the matter to a magistrate judge who issued
a w ritten Report and Recommendation (R& R) recommending denial of D efendant’s
motion. Defendant objected to the R& R, and the district court overruled his
objections and adopted the R& R. The case proceeded to trial where a jury found
Defendant guilty on both counts.
The court sentenced Defendant to 168 m onths in prison. In calculating his
sentence, the court increased Defendant’s base offense level by four points in
accordance with U.S.S.G. § 2K2.1(b)(5). That section provides for an enhancement
w hen a defendant possesses a firearm in connection with another “felony offense.”
II.
Defendant claims D eputy H ass did not have reasonable suspicion to stop his
vehicle, and therefore the district court erred in denying his motion to suppress.
Defendant argues D eputy Hass lacked training and experience in handling his radar
gun and thus, reliance on the radar gun’s reading could not create the requisite
reasonable suspicion necessary to stop Defendant. Defendant further argues D eputy
Hass had not calibrated the radar gun in several months, resulting in an unreliable
1
(...continued)
F.3d 1331, 1332 n.2 (10th Cir. 1994). (“[W]e will not address issues raised for the
first time in a reply brief.”).
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reading.
A traffic stop is valid under the Fourth Amendment, “if the stop is based on
an observed traffic violation or if the police officer has reasonable articulable
suspicion that a traffic or equipment violation has occurred or is occurring.” United
States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir. 1995) (en banc). “O ur sole
inquiry is whether this particular officer had reasonable suspicion that this particular
motorist violated any one of the multitude of applicable traffic and equipment
regulations of the jurisdiction.” Id. (citation and quotation m arks omitted). W e
have no doubt this standard was satisfied here. Regardless of the amount of training
Deputy Hass received in operating the radar gun, he was able to conclude, just by
observing the vehicle, Defendant was speeding and thus committing a traffic
violation. Such observation is the only requirement for a valid stop under the Fourth
Amendment. See id., 71 F.3d at 787. Furthermore, Defendant offered no testimony
at the suppression hearing concerning how often radar gun calibration is required or
that the radar gun was malfunctioning. Accordingly, D eputy Hass’s stop of
Defendant’s vehicle complied with the Fourth A m endment, and the district court
properly denied his motion to suppress.
III.
Defendant also challenges his sentence claiming the addition of four points to
his base offense level contravenes the Supreme C ourt’s holding in United States v.
Booker, 543 U.S. 220 (2005). Sentencing Guideline § 2K2.1(b)(5) provides a four
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level enhancement to a defendant’s base offense level “if the defendant used or
possessed any firearm or ammunition in connection w ith another felony offense.”
U.S.S.G. § 2K2.1(b)(5). The district court applied this enhancement, finding
Defendant possessed the firearm in connection with the uncharged felony of
possessing methamphetamine. On appeal, Defendant argues because the
methamphetamine offense was not submitted to the jury, application of U.S.S.G. §
2K2.1(b)(5) was unconstitutional. Defendant’s argument is foreclosed by our
precedent.
In U nited S tates v. M agallanez, 408 F.3d 672, 684-85 (10th Cir. 2005), w e
held even after Booker, facts relevant to sentencing still need only be proved by a
preponderance, as long as the guidelines are considered advisory. See also United
States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005) (“Booker therefore does not
render judicial fact-finding by a preponderance of the evidence per se
unconstitutional. The remedial portion of Booker demonstrates that such fact-finding
is unconstitutional only when it operates to increase a defendant’s sentence
mandatorily.”). The record supports the district court’s conclusion Defendant
possessed methamphetamine, and the close proximity of the drugs and the gun
established Defendant possessed the firearm “in connection with” the felonious
possession of drugs. U.S.S.G. § 2K2.1(b)(5). As noted by the district court, “the
availability of the gun in such close proximity to the methamphetamine was
sufficient evidence of a connection between the firearm and the possession of
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methamphetamine, which is a felony offense in the state of O klahoma.” The court
made this finding by a preponderance of the evidence. M ost importantly for Booker
purposes, the sentencing transcript clearly establishes the court applied the
Guidelines in a discretionary fashion. Thus, no Booker error occurred.
A FFIR ME D.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
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