United States v. Perez , 237 F. App'x 989 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
August 8, 2007
No. 06-50624
No. 06-50635 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GREGORY PEREZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
No. 7:05-CR-0224
No. 7:05-CR-0094
Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
In 2005, Gregory Perez was charged in the Western District of Texas with
one count of possession with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). At the time, Perez was on
supervised release for a 1999 conviction in the Eastern District of Kentucky for
possession with intent to distribute marijuana. This supervision was
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 06-50635
transferred to the Western District of Texas, and the Government moved to
revoke Perez’s supervised release based on a search of Perez’s property in Texas
that resulted in the discovery of cocaine and other evidence. In both cases, Perez
filed an identical motion to suppress the evidence seized during the search. The
district court denied the motion to suppress in both cases, and the drug
trafficking charge proceeded to trial. The jury found Perez guilty, and Perez was
sentenced to 120 months of imprisonment and eight years of supervised release.
The district court also found that Perez had violated the terms of his supervised
release and sentenced Perez to 18 months imprisonment to run consecutively to
the 120-month sentence.
Perez now appeals the district court’s denial of his motions to suppress,
the sufficiency of the evidence to support his conviction, and the revocation of his
supervised release. We affirm the district court’s denial of the suppression
motions, Perez’s conviction, and the revocation of his supervised release.
I
Perez appeals the denial of his motions to suppress on two grounds:
(1) the good-faith exception to the warrant requirement does not apply because,
he contends, the affidavit underlying the search warrant was so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable, and (2) the search exceeded the scope of the warrant. We assume
without deciding that the search was illegal and perform a harmless error
analysis. The test for harmless error is whether the constitutional error “was
harmless beyond a reasonable doubt.”1
1
Chapman v. California, 386 U.S. 18, 24 (1967); see also Fahy v. Connecticut, 375 U.S.
85, 86-87 (1963) (“The question is whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction. To decide this question, it is necessary
to review the facts of the case and the evidence adduced at trial.”).
2
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The only evidence Perez sought to suppress was binoculars and letters
addressed to Perez, which were found in Perez’s residence, and cellophane,
which was found in a shed behind the residence. The officers also found 680.28
grams of cocaine and a digital scale in the “open field” adjacent to Perez’s
property, and a bottle of Inositol (a legal substance used as a cutting agent to
add weight to cocaine) in a field on Perez’s property. Perez did not seek to
suppress these items.2 Considerable other evidence linking Perez to the cocaine
was presented to the jury. Admitting the binoculars, letters, and cellophane into
evidence was harmless error in light of the entire record.
II
Perez contends that there is insufficient evidence to support his conviction.
Where, as here, a defendant makes a timely motion for acquittal, this court will
uphold a jury’s verdict if a reasonable trier of fact could conclude from the
evidence that the elements of the offense were established beyond a reasonable
doubt.3 After a complete review of the evidence in the light most favorable to the
jury’s verdict, we conclude that there was sufficient evidence to support Perez’s
conviction.
III
Perez contends that the evidence was insufficient to support the revocation
of his supervised release. We review a district court’s decision to revoke a
defendant’s supervised release for abuse of discretion.4 If a district court finds
by a preponderance of the evidence that a defendant has violated a condition of
2
See Hester v. United States, 265 U.S. 57, 59 (1924) (“[T]he special protection accorded
by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not
extended to the open fields.”); Oliver v. United States, 466 U.S. 170, 178 (1984) (reaffirming
the “open fields” doctrine enunciated in Hester).
3
United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001).
4
United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995).
3
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his supervised release, then the court has the discretion to revoke the previous
sentence and impose a term of imprisonment.5 The district court did not abuse
its discretion in revoking Perez’s supervised release because the evidence is
sufficient to support the finding that Perez possessed cocaine in violation of his
supervised release.
AFFIRMED.
5
Id.; 18 U.S.C. § 3583(e)(3).
4