United States v. Williams ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20042
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EARL WILLIAMS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-327-1
--------------------
December 7, 2000
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
James Earl Williams appeals his conviction and sentence for
possession with the intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a) & (b)(1)(A). Williams first
argues that the district court should have granted his motion to
quash the indictment because the file date stamped on the
indictment reflects that it was filed three days prior to the
grand jury proceedings. Because Williams failed to object to the
allegedly defective indictment prior to trial, the district court
was within its discretion in denying the motion to quash. See
*
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that this opinion should not be published and is not precedent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. 00-20042
-2-
Fed. R. Crim. P. 12(b)(2); United States v. Wylie, 919 F.2d 969,
972 (5th Cir. 1990). Moreover, given the record before the
district court, Williams cannot show that denial of the motion on
its merits was an abuse of discretion.
Williams next argues that the district court erred by
denying his motion to suppress evidence seized on the date of his
arrest. We reject the Government’s contention that Williams
lacks standing to challenge the search of his car because the
Government failed to raise this argument before the district
court. See United States v. Gonzales, 79 F.3d 413, 419 (5th Cir.
1996). We review the district court’s ruling on the motion to
suppress for clear error. Id.
The district court did not clearly err by determining that
the initial stop of the vehicle was supported by probable cause
because the stop was made after Williams committed a traffic
violation. See United States v. Lopez-Valdez, 178 F.3d 282, 288
(5th Cir. 1999). We also find no clear error in the denial of
the motion to suppress with regard to the subsequent search of
the car. Williams does not challenge the court’s finding that
probable cause for the search was established by the alert of the
drug dog. Accordingly, Williams has waived any challenge to the
court’s primary basis for denying the motion to suppress. See
United States v. Fagan, 821 F.2d 1002, 1015 n.10 (5th Cir. 1987)
(arguments not briefed are deemed waived).
With regard to Williams’s sentencing, Williams failed to
challenge the obstruction-of-justice assessment based on the
alleged immateriality of his perjured testimony. Accordingly,
No. 00-20042
-3-
review is for plain error. See United States v. Olano, 507 U.S.
725, 732-35 (1993); United States v. Calverley, 37 F.3d 160, 162-
64 (5th Cir. 1994)(en banc). Given that the district court
stated that it would have assessed Williams the same sentence
even without the obstruction enhancement, we find no plain error.
We further find no plain error with regard to Williams’s
assertion that the obstruction allegation should have been part
of the indictment. Apprendi v. New Jersey, 120 S. Ct. 2348
(2000), is applicable only where the sentence exceeds the
statutory maximum, not to cases in which the sentence is enhanced
within the statutory range. United States v. Meshack, 225 F.3d
556, 576-77 (5th Cir. 2000). Williams’s 292-month sentence did
not exceed the statutory maximum sentence of life imprisonment
for the offense. See 21 U.S.C. § 841(b)(1)(A)(iii).
We reject Williams’s challenge to the constitutionality of
the Sentencing Guidelines. See United States v. Wilson, 105 F.3d
219, 222 (5th Cir. 1997); United States v. White, 869 F.2d 822,
825 (5th Cir. 1989). Finally, we reject Williams’s assertion
that the district court was required to release custody of the
contraband to him for testing outside the presence of Government
agents. See United States v. Kimbrough, 69 F.3d 723, 730-31 (5th
Cir. 1995). The judgment of the district court is AFFIRMED.
AFFIRMED.