United States v. Hall ( 2000 )

No. 98-51093
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-51093
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LEVENSTON HALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-98-CR-6-ALL
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January 27, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Levenston Hall appeals the his conviction and sentence for
possession of cocaine base with intent to distribute in violation
of 21 U.S.C. § 841(a)(1). Hall argues the following: (1) the
district court erred when it admitted extraneous bad act evidence
pursuant to Fed. R. Evid. 404(b); (2) the district court erred when
it imposed a fine; (3) the district court erred when it denied his
motion to suppress evidence obtained from a warrantless search of
his vehicle; (4) the district court erred when it failed to
suppress evidence obtained incident to Hall’s arrest and from
*
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that this opinion should not be published and is not precedent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. 98-51093
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subsequent searches of a storage shed and a safe; (5) the district
court erred when it imposed a two-level offense level increase
based on Hall’s role as a leader or organizer in the offense; (6)
the prosecutor improperly vouched for a witness; and (7) the
district court erred when it calculated the total quantity of drugs
attributable to Hall. Hall has also filed a motion for discovery
on appeal requesting stipulations, a copy of his extradition, and
a copy of the indictment. This motion is DENIED.
Any error that the district court may have committed by
admitting evidence of allegedly stolen merchandise was harmless.
See United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995);
United States v. Townsend, 31 F.3d 262, 268 (5th Cir. 1994). The
overwhelming evidence of guilt, including testimony from a
confidential informant, undercover police officer, and arresting
police officer, all confirmed that Hall possessed “crack” cocaine
with intent to distribute. Although he raised the issue, Hall
failed to brief the issue whether the district court erred when it
imposed a fine; therefore, the issue is deemed abandoned. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The
district court did not err when it denied Hall’s motion to
suppress, because the officers had probable cause to believe that
the vehicle contained contraband or other evidence of a crime. See
Wyoming v. Houghton, 119 S. Ct. 1297, 1300-01 (1999); United States
v. Ross, 456 U.S. 798 (1982); Carroll v. United States, 267 U.S.
132, 153, 160-62 (1925). The remaining suppression issues were not
encompassed by Hall’s pretrial suppression motion and will not be
considered for the first time on appeal. See United States v.
No. 98-51093
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Chavez-Valencia, 116 F.2d 127, 129, 131-32 (5th Cir. 1997). The
district court did not err when it found that Hall was an organizer
or leader under U.S.S.G. § 3B1.1(c). See United States v. Lage,
183 F.3d 374, 382-83 (5th Cir. 1999), petition for cert. filed
(Oct. 27, 1999)(Nos. 99-6847 & 99-6903). The findings in the
presentence report (PSR) and the record as a whole support the
conclusion that Hall was a leader or organizer in the offense. Id.
Hall failed to identify any remarks by the prosecutor that would
constitute vouching for a witness’ credibility. See United States
v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995). Hall has failed
to present rebuttal evidence demonstrating an error in the PSR’s
calculation of the drug quantity used for sentencing. See United
States v. Franklin, 148 F.3d 451, 460 (5th Cir. 1998).
Accordingly, the district court’s sentence and conviction is
AFFIRMED. Motion for discovery is DENIED.