United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-41609
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JOHN CHAPPELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-41-ALL
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
William John Chappell appeals his conditional guilty-plea
conviction and sentence for being a felon in possession of a
firearm. Chappell argues that the district court erred in
denying his motion to suppress evidence seized from his garage.
Although Chappell concedes that he had no expectation of privacy
since his garage door was open, he contends that the seizure of
evidence therefrom, which was in plain view, was improper since
officers were not authorized to enter the garage without a
*
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that this opinion should not be published and is not precedent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. 03-41609
-2-
warrant. Chappell argues that, to the extent state law
authorized the officers’ entry into his garage, the applicable
provisions of the Texas Transportation Code (TTC) violate the
Fourth Amendment.
Regardless of Chappell’s challenge to the TTC, the exigent
circumstances created by Chappell by leaving his garage door open
and a firearm in plain view justified the officers’ entry into
his garage. See United States v. Jones, 239 F.3d 716, 719-22
(5th Cir. 2001). Accordingly, the district court did not err in
denying Chappell’s motion to suppress. See United States v.
Alvarez, 6 F.3d 287, 289 (5th Cir. 1993).
Chappell also renews his challenge to the presentence
report’s six-level increase pursuant to U.S.S.G.
§ 2K2.1(b)(1)(C), arguing that one of the 25 firearms recovered
from his residence belonged to his father-in-law. When
overruling Chappell’s objection to the U.S.S.G. § 2K2.1(b)(1)(C)
enhancement, the district court rejected as incredible Chappell’s
argument that he lacked knowledge of the firearm. A credibility
determination on a factual finding at sentencing is peculiarly
within the province of the trier-of-fact. See United States v.
Sotelo, 97 F.3d 782, 799 (5th Cir. 1996).
For the first time in a FED. R. APP. P. 28(j) letter,
Chappell contends that, pursuant to Blakely v. Washington, 124
S. Ct. 2531 (2004), his offense level increases under U.S.S.G.
§§ 2K2.1(b)(1)(C) and 2K2.1(b)(4) were improper since the facts
No. 03-41609
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supporting these enhancements were not submitted to a jury and
proven beyond a reasonable doubt. Chappell acknowledges that
this argument is foreclosed by United States v. Pineiro, 377 F.3d
464, 473 (5th Cir. 2004), petition for cert. filed (U.S. July 14,
2004) (No. 03-30437), and he raises the issue solely to preserve
it for future review.
AFFIRMED.