United States v. Smith

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004

Charles R. Fulbruge III
Clerk
No. 03-51205
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES PHILLIP SMITH,

Defendant-Appellant.

--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-03-CR-165-ALL-H
--------------------

Before DAVIS, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Charles Phillip Smith has appealed his conviction and

sentence for possession of a firearm by a felon and possession of

cocaine base with intent to distribute. Smith’s motion to

“allow” his appointed attorney to withdraw is DENIED. The motion

was not timely filed and it does not show that Smith has

unequivocally asserted a desire to represent himself on appeal.

United States v. Kizzee, 150 F.3d 497, 501 (5th Cir. 1998);

Rotolo v. United States, 404 F.2d 316, 317 (5th Cir. 1968). The

*
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this opinion should not be published and is not precedent except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.
 No. 03-51205
-2-

Government’s motion to strike Smith’s reply brief is likewise

DENIED.

We find no abuse of discretion in the district court’s

denial of Smith’s motion to continue the trial. See United

States v. Olaniyi-Oke, 199 F.3d 767, 771 (5th Cir. 1999); United

States v. Hughey, 147 F.3d 423, 431 (5th Cir. 1998). Smith’s

assertion that the district court abused its discretion by

denying his motion to suppress as untimely is not well taken.

The district court allowed Smith to contest the admissibility of

his written confession outside the presence of the jury. Smith

waived the issue whether the search and arrest warrants were

supported by probable cause by failing to brief the issue in the

district court or to raise it at trial.

We agree with Smith that the district court plainly erred by

making an improper comment on the evidence. United States v.

Sanchez, 325 F.3d 600, 603 (5th Cir. 2003). Nevertheless, the

comment did not affect the fairness or integrity of Smith’s

trial. Id.; United States v. Hinojosa, 349 F.3d 200, 203-04 (5th

Cir. 2003); see United States v. Olano, 507 U.S. 725, 732 (1993).

Smith’s argument that his sentence should be vacated

pursuant to Blakely v. Washington, U.S. , 124 S. Ct. 2531

(2004) is foreclosed by this court's recent opinion in United

States v. Pineiro, ___ F.3d ___, No. 03-30437, 2004 WL 1543170,

at *1 (5th Cir. July 12, 2004).

AFFIRMED.