United States v. Smith , 222 F. App'x 391 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 8, 2007
Charles R. Fulbruge III
Clerk
No. 06-50478
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMARIO DONNELL SMITH,
Defendant-Appellant.
Consolidated with
No. 06-50541
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER EUGENE BRADFORD,
Defendant-Appellant.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:05-CR-507-2
USDC No. 5:05-CR-507-3
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Before DeMOSS, STEWART and PRADO, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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. 06-50478 c/w
No. 06-50541
-2-
Following the denial of a motion to suppress a firearm and
cash discovered during a vehicle search (following a traffic
stop), Demario Donnell Smith and Christopher Eugene Bradford
entered conditional guilty pleas to bank robbery and aiding and
abetting. Smith and Bradford were both sentenced to 96 months of
imprisonment. They now appeal the denial of the suppression
motion. They do not challenge the validity of the initial stop.
Instead, they argue only that the vehicle search was improper.
Conclusions of law concerning a motion to suppress are
reviewed de novo; findings of fact, for clear error. United
States v. Navarro, 169 F.3d 228, 231 (5th Cir. 1999). The
appellants do not challenge any findings of fact. In this case,
the officer who made the stop received a lookout alert for three
black males in a black Honda Civic who had just committed an
armed bank robbery. Shortly thereafter, the officer observed
Smith and two other black males in just such a vehicle. As the
officer approached the vehicle on foot, he saw the occupant in
the back seat of the vehicle move abruptly in the vehicle. Under
these circumstances, any reasonably prudent officer would have
feared for his safety. Thus, the protective search of the
vehicle in this case did not violate the Fourth Amendment. See
Michigan v. Long, 463 U.S. 1032, 1051 (1983); United States v.
Wallen, 388 F.3d 161, 165-66 (5th Cir. 2004); United States v.
Shabazz, 993 F.2d 431, 434 (5th Cir. 1993). Since the firearm
and the cash were hidden in an area of the center console that
No. 06-50478 c/w
No. 06-50541
-3-
was easily accessible to the occupants of the vehicle, the
officers did not exceed their authority in searching that area.
We therefore uphold the district court’s denial of the
suppression motion.
Bradford also challenges his 96-month sentence as an
unreasonable upward deviation from his guideline sentencing range
of 63 to 78 months. The district court’s stated reasons for the
sentence imposed enable us to determine that the factors set
forth at 18 U.S.C. § 3553(a) support the sentence. See United
States v. Smith, 440 F.3d, 704, 709-10 (5th Cir. 2006).
Moreover, the deviation was reasonable. Id. at 708 n.5, 709-10.
We therefore uphold the sentence imposed by the district court.
AFFIRMED.