United States v. Huff , 134 F. App'x 697 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 13, 2005
Charles R. Fulbruge III
Clerk
04-41165
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LINWOOD WAYNE HUFF,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(2:04-CR-84-1)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Linwood Wayne Huff appeals his conviction and sentence for
possession with intent to distribute crack cocaine. Huff claims:
the district court erred by denying his motion to suppress based
upon an illegal search and seizure; the requirement in United
States Sentencing Guideline § 3E1.1(b), which states that a third-
level of reduction for acceptance of responsibility can only be
given upon motion by the Government, violates the separation of
powers doctrine; the Government’s refusal to move for that third-
*
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this opinion should not be published and is not precedent except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.
level reduction was based on an unconstitutional motive; and the
district court plainly erred in sentencing him under a mandatory,
as opposed to advisory, Guidelines system.
The denial of a motion to suppress is reviewed under a two-
tiered standard of review: factual findings are reviewed for clear
error, issues of law de novo. E.g., United States v. Villalobos,
161 F.3d 285, 288 (5th Cir. 1998). Huff’s constitutional
challenges are reviewed de novo. E.g., United States v. Romero-
Cruz, 201 F.3d 374, 377 (5th Cir.), cert. denied, 529 U.S. 1135
(2000). As noted, Huff concedes that his claim that his sentence
violates the Sixth Amendment is reviewed for plain error only.
The investigatory stop and frisk of Huff did not violate his
Fourth Amendment rights. Among other things, there was no
unconstitutional seizure. See United States v. Shabazz, 993 F.2d
431, 436 (5th Cir. 1993). Officer Goodman was able to corroborate
the anonymous tip, thereby providing Goodman with the requisite
reasonable suspicion to justify the stop. And, Goodman had a
reasonable belief that Huff was armed and dangerous, which
justified the frisk. See United States v. Reyes, 349 F.3d 219, 224
(5th Cir. 2003); United States v. Rodriguez, 835 F.2d 1090, 1092
(5th Cir. 1988).
Huff’s constitutional challenge, based upon separation of
powers, to U.S.S.G. § 3E1.1(b) is moot in the light of United
States v. Booker, 125 S. Ct. 738 (2005). We reject Huff’s
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contention that the Government’s refusal to move for a third-level
credit for acceptance of responsibility was based on an
unconstitutional motive. Huff’s suppression hearing was the
substantive equivalent of a full trial, requiring the Government’s
full preparation; and, therefore, the Government was justified in
not moving for the additional credit. U.S.S.G. § 3E1.1(b); cf.
United States Gonzales, 19 F.3d 982, 984 (5th Cir.), cert. denied,
513 U.S. 887 (1994).
Finally, Huff has not established, that but for the district
court’s plain error in sentencing him under the mandatory
Guidelines regime held unconstitutional in Booker, the outcome of
his proceedings would likely have been different. See United
States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for
cert. filed, (U.S. 31 A.K. Marsh. 2005) (No. 04-9517). In this regard, the
district court sentenced Huff to the high-end of the applicable
range to achieve the desired punishment.
AFFIRMED
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