United States v. Fisher ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11311
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD WADE FISHER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-217-ALL-P
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October 27, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Richard Wade Fisher appeals his conviction and sentence for
being a felon in possession of explosive materials which were
shipped and transported in interstate commerce, in violation of
18 U.S.C. §§ 842(i)(1), 844(a). The district court did not err
in denying Fisher’s motion to suppress. The affidavit in support
of the search warrant was sufficiently detailed and the informant
had a sufficient basis of knowledge to remove it from the “bare
*
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that this opinion should not be published and is not precedent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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bones” category. See United States v. Satterwhite, 980 F.2d 317,
321-22 (5th Cir. 1992); United States v. Jackson, 818 F.2d 345,
348 (5th Cir. 1987). Whether or not the affidavit established
probable cause, the officers executing the warrant acted in good
faith reliance on it. See United States v. Leon, 468 U.S. 897,
922-23 (1984); United States v. Harper, 802 F.2d 115, 119 (5th
Cir. 1986).
The district court did not abuse its discretion in refusing
to allow use of a government witness’s 13-year-old rape
conviction for impeachment purposes. Fisher had not offered any
circumstances that might be construed as exceptional, nor has he
established that the probative value of the rape conviction
substantially outweighs its prejudicial effect. See Fed. R.
Evid. 609(b); United States v. Hamilton, 48 F.3d 149, 154 (5th
Cir. 1995); United States v. Cathey, 591 F.2d 268, 276 (5th Cir.
1979).
The district court’s conclusion that Fisher’s criminal
history category underrepresented the seriousness of his criminal
past was not clearly erroneous. Although the district court
should not have considered Fisher’s arrests, the error was
harmless since it did not affect the court’s selection of the
sentence imposed. See Williams v. United States, 503 U.S. 193,
200-01 (1992); U.S.S.G. §§ 4A1.2 comment. (n.3), 4A1.3. The
court provided acceptable reasons for the departure, and the
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departure was reasonable. See United States v. Pennington, 9
F.3d 1116, 1118 (5th Cir. 1993).
The district court’s refusal to grant Fisher a second
continuance of the sentencing hearing so that he could prepare
argument on the upward departure was not an abuse of discretion.
See United States v. Peden, 891 F.2d 514, 519 (5th Cir. 1989).
AFFIRMED.