United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 3, 2005
Charles R. Fulbruge III
Clerk
No. 04-30764
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY VAN DANIELS,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 3:03-CR-30019-RGL-KL
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gary Van Daniels appeals his guilty-plea conviction and
sentence for possession of 50 grams or more of cocaine base with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
district court sentenced Daniels to 168 months in prison and five
years of supervised release.
Daniels’s conditional plea agreement permits him to appeal
the district court’s denial of his motion to suppress the cocaine
base that was seized from his car on November 4, 2002, in
Winnsboro, Louisiana. On that night, police officers acting
pursuant to the tip of a confidential informant (“CI”) followed
*
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this opinion should not be published and is not precedent except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. 04-30764
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Daniels’s car as he drove among several towns in northern
Louisiana. Approximately two hours after officers stopped
Daniels’s car in Winnsboro for a traffic violation, a Franklin
Parish District Judge signed a search warrant authorizing a
search of the car. The search resulted in the seizure of
approximately 222 grams of crack cocaine and 20 grams of
marijuana.
Daniels now argues that the court erred in denying his
motion to suppress, primarily because the affidavit on which the
search warrant was based was insufficient within its “four
corners” to establish probable cause to search. He argues that
the affidavit was “bare bones.” Daniels contends that the search
thus did not fall with in the “good faith” exception announced in
United States v. Leon, 468 U.S. 897 (1984). Even if the Leon
good-faith exception does not apply, we may affirm the denial of
Daniels’s suppression motion if we conclude that a warrantless
search would have been supported by probable cause. See United
States v. Gbemisola, 225 F.3d 753, 759 (D.C. Cir. 2000);
see also 3A WRIGHT, KING, & KLEIN, FEDERAL PRACTICE AND PROCEDURE § 666.
The testimony at Daniels’s state-court suppression hearing and at
a supplemental hearing in federal district court showed that
probable cause for the search did exist under the “automobile
exception” to the Fourth Amendment’s warrant requirement.
See United States v. Saucedo-Munoz, 307 F.3d 344, 351 (5th Cir.
2002). Construing the evidence “in the light most favorable” to
the Government, see United States v. Laury, 985 F.2d 1293, 1314
(5th Cir. 1993), we hold that the district court did not err in
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concluding that the totality of the circumstances established
probable cause to believe that Daniels was transporting drugs in
his car. See Saucedo-Munoz, 307 F.3d at 351. We affirm the
district court’s denial of Daniels’s motion to suppress.
Daniels contends that the district court erred in denying
his pre-sentencing motion for additional testing of the cocaine
seized from his car. In that motion, Daniels argued that,
although testing had confirmed that the substance was cocaine
base, his attorney had not informed him that, as a legal matter,
“all cocaine base is not crack cocaine.” Daniels’s motion was
essentially a motion to conduct discovery. Daniels has
established neither a relevant legal distinction between “base”
and “crack” nor that the substance in his case was “crack” but
not “base.” The district court did not abuse its discretion in
denying the motion. United States v. Webster, 162 F.3d 308, 339
(5th Cir. 1999).
For the first time on appeal, Daniels argues that the
Government presented no evidence at sentencing that the substance
found in his car was “crack” cocaine. This claim is reviewable
for plain error only. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc); see United States v. Olano, 507
U.S. 725, 732 (1993). Daniels’s Presentence Report (“PSR”)
stated that testing of the substance showed that it was cocaine
base (or “crack” cocaine) weighing 231.30 grams. This unrebutted
PSR information bore sufficient “indicia of reliability” to
support the district court’s determination that crack cocaine was
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involved. See United States v. Cothran, 302 F.2d 279, 286 (5th
Cir. 2002). No error, plain or otherwise, is apparent.
We AFFIRM the conviction and sentence.