United States v. Lineberry , 93 F. App'x 632 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41053
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JED STEWART LINEBERRY,
Defendant-Appellant.
--------------------
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-113-ALL
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Jed Stewart Lineberry appeals his jury trial conviction
and the sentence imposed for being a felon in possession of a
firearm. Lineberry was sentenced to a term of imprisonment of 63
months to be followed by a three-year term of supervised release.
Lineberry argues that his motion to suppress evidence seized
from his residence should have been granted because the warrant
authorizing the search was not issued in accordance with FED. R.
*
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that this opinion should not be published and is not precedent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. 03-41053
-2-
CRIM. P. 41. Rule 41 applies only to warrants sought by federal
officers. Because the warrant herein was issued by a state
magistrate at the request of a state officer, the rule is
inapplicable. See United States v. McKeever, 905 F.2d 829, 832
(5th Cir. 1990) (en banc).
Although the warrant did not specifically authorize the
seizure of firearms, Lineberry’s argument that the seizure of the
weapons should be suppressed is without merit. The incriminating
character of the weapons was immediately apparent to the officers
because they were aware that a prostitution business was being
operated on the premises, in addition to drugs being unlawfully
used therein, and that Lineberry was a convicted felon. See
United States v. Hill, 19 F.3d 989, 989 (5th Cir. 1994).
Lineberry’s argument that the affidavit supporting the
warrant was prepared after his arrest was rebutted by the
testimony of Detective Coburn that the date in the body of
the affidavit was the date that he knew the warrant would be
executed. Lineberry’s argument that the warrant was not
sufficiently specific with respect to the persons to be arrested
and the suspected criminal activity is meritless because the
warrant incorporated the affidavit, which included all of the
relevant information.
Lineberry argues that the search was unconstitutional
because the officers entered his residence without an
announcement or knocking on the door. The officers had a
No. 03-41053
-3-
reasonable suspicion that Lineberry was in possession of firearms
and drugs that could have been disposed of if an announcement was
made by the officers. The officers had a reasonable belief that
an announcement would endanger the officers and the occupants and
that evidence could be destroyed. Thus, there were exigent
circumstances warranting the unannounced entry. See United
States v. Banks, 124 S. Ct. 521, 525 (2003).
The record does not reflect whether the search of
Lineberry’s trash violated the Fourth Amendment because there
was no evidence presented as to its specific location or its
accessibility to the public. See United States v. Headrick,
922 F.2d 396, 397-99 (5th Cir. 1991). However, even if the
evidence that empty steroid vials and syringes were found in the
trash had not been included in the affidavit seeking the warrant,
there was sufficient other evidence in the affidavit showing that
illegal activity warranted the search.
Lineberry failed to demonstrate that the Government
suppressed evidence in violation of Brady v. Maryland, 373 U.S.
83 (1963) because he was aware of the existence of the photograph
and the tape of his meeting with Coburn prior to trial. Further,
these items did not constitute exculpatory or impeachment
evidence that would have had an effect on the outcome of the
trial. Brady, 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419,
436 (1995).
No. 03-41053
-4-
Lineberry argues that he should not have been classified as
a convicted felon in possession because there was no evidence
that he possessed the firearms found in his home. He argues that
the evidence showed that the weapons belonged to his wife or his
father.
Lineberry’s wife testified that Lineberry purchased and
owned the guns found in their home. Lineberry’s father’s
testimony that he hid the firearms all over Lineberry’s house
without Lineberry’s knowledge was not credible. Lineberry
admitted in a taped conversation with Coburn that he possessed
firearms. There was sufficient evidence for a rational trier of
fact to find beyond a reasonable doubt that Lineberry was in
possession of firearms. Jackson v. Virginia, 443 U.S. 307, 319
(1979).
Lineberry’s argument that he should not have been classified
as a convicted felon because his civil rights were restored under
Texas law is unavailing. Lineberry’s prior conviction occurred
in Arkansas and was a felony under the laws of that state.
He has not demonstrated that his civil rights were restored by
the State of Arkansas. Thus, he is a convicted felon within the
meaning of 18 U.S.C. § 921(a)(20) and § 922(g)(1).
The district court did not clearly err in assigning three
criminal history points to Lineberry for his prior conviction
that occurred more than fifteen years prior to his arrest for the
instant offense. There was reliable evidence that Lineberry
No. 03-41053
-5-
engaged in relevant conduct within fifteen years of his last
release from incarceration in connection with that offense.
See U.S.S.G. §§ 4A1.2(d)(2), (e); § 4A1.2, comment. (n.8);
§ 4A1.2(k)(2)(B). Thus, the prior sentence could be considered.
The district court did not plainly err in assigning criminal
history points for Lineberry’s prior misdemeanor offenses.
Lineberry did not argue in the district court, and has not shown
on appeal, that the district court plainly erred in determining
that these offenses were not violations of city ordinances within
the meaning of U.S.S.G. § 4A1.2(c)(1). United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).
The criminal history point given for Lineberry’s sentence
of a $250 fine for his offense of obstructing governmental
operations was not plain error because a sentence specifying a
fine is treated as a non-imprisonment sentence warranting the
addition of one point. See § 4A1.2(c), § 4A1.2, comment. (n.4).
Lineberry’s diversionary sentence for failing to maintain vehicle
transportation records also qualified for the assignment of an
additional point. See § 4A1.2(f); § 4A1.2, comment. (n.9).
In light of the evidence that several of the firearms were
found loaded in easily accessible locations in the house, there
is no support for Lineberry’s assertion that the firearms found
in the search of his home were used for sporting or collection
purposes. Thus, there was no plain error in failing to make a
six-level reduction of Lineberry’s offense level pursuant to
No. 03-41053
-6-
§ 2K2.1(b)(2).
Lineberry also challenges the four-level upward adjustment
of his offense level for using or possessing any firearms or
ammunition in connection with another felony offense because he
contends that there was no credible evidence that he committed
another felony offense. Financing and promoting a prostitution
organization is a felony under Texas law, and there was reliable
evidence in the record to support a finding that Lineberry
organized and operated a prostitution ring involving at least two
or more prostitutes. See TEX. PENAL CODE ANN. § 43.04. The four-
level adjustment of Lineberry’s offense level pursuant to
§ 2K2.1(b)(5) for use of a firearm in connection with another
felony offense was not an erroneous determination.
Lineberry’s conviction and sentence are AFFIRMED.
Lineberry’s appeal from the district court’s order refusing
to consider Lineberry’s pro se motion for release pending appeal
is DISMISSED as MOOT.