United States v. Walthall ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 5, 2005
Charles R. Fulbruge III
Clerk
No. 05-20124
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ASHLEY TREMAINE WALTHALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-271-ALL
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Ashley Tremaine Walthall appeals from his conviction of
possession with intent to distribute PCP, possession with intent
to distribute marijuana, use of a firearm during and in
connection to a drug-trafficking offense, and being a felon in
possession of a firearm. He contends that the Government failed
to prove that police had probable cause for his arrest because
probable cause in his case could not be shown by the collective
knowledge of officers on the scene; that the evidence 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this opinion should not be published and is not precedent except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.
No. 05-20124
-2-
insufficient to prove that his firearm traveled in interstate
commerce; that the district court erred by making factual
findings relevant to his post-United States v. Booker, 125 S. Ct.
738 (2005), sentencing independent of a jury; and that the
district court erred by applying a preponderance-of-the-evidence
standard to its sentencing factfindings.
The testimony at the suppression hearing and trial indicated
that police had probable cause to arrest Walthall and search his
person and his vehicle. See United States v. Carillo-Morales,
27 F.3d 1054, 1062 (5th Cir. 1994); United States v. Kelly,
961 F.2d 524, 527 (5th Cir. 1992). Viewing the evidence in the
light most favorable to the district court’s ruling, see United
States v. Foy, 28 F.3d 464, 474 (5th Cir. 1994), the officer
conducting the surveillance of Walthall related his observations
to the other members of his unit, including the arresting
officer. The observations of the officer conducting
surveillance, combined with Walthall’s actions, were sufficient
to give rise to probable cause.
The testimony at trial was sufficient for a reasonable jury
to find beyond a reasonable doubt that the firearm at issue in
the case was a genuine Lorcin pistol, and that it was
manufactured in California. The evidence was sufficient to prove
the interstate commerce element of a felon-in-possession offense.
See United States v. Guidry, 406 F.3d 314, 318 (5th Cir.), cert.
denied, 126 S. Ct. 190 (2005).
No. 05-20124
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Walthall does not challenge the reasonableness of his
sentence. Rather, he challenges the sentencing procedures
followed by the district court. This court has noted regarding
post-Booker sentencing that, under the advisory sentencing
scheme, district judges may find all facts relevant to
sentencing, employing the preponderance-of-the-evidence standard.
United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). This court noted that “[u]nder
U.S.S.G. § 6A1.3(b) (2004), which remains in effect, the district
court is required to ‘resolve disputed sentencing factors . . .
in accordance with Rule 32(i), Fed. R. Crim. P.’ The Commentary
to this Guideline provides for use of the preponderance of the
evidence standard.” Id. n.6.
Waltham seeks to have this portion of Mares overturned,
arguing that it contradicts the Supreme Court’s recent Sixth
Amendment jurisprudence. One panel of this court may not
overrule or ignore a prior panel decision. See United States v.
Ruiz, 180 F.3d 675, 676 (5th Cir. 1999).
AFFIRMED.