United States v. King ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50357
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY LYNN KING,
Defendant-Appellant.
_____________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CR-53-1
_____________________________________________
September 22, 2000
Before POLITZ, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*
Gary Lynn King appeals his conviction for possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1). The conviction was based on
a conditional guilty plea. King asserts that the district court erred in denying his motion
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
to suppress and by enhancing his sentence two-levels for possession of a firearm.
Finding no error, we affirm.
King contends that police lacked probable cause and a valid consent to search
his pickup truck where the subject drugs were found. Considering the totality of the
circumstances, including the officers' observations, knowledge, and training, we
conclude that the information provided by the confidential informant gave the officers
probable cause to believe that methamphetamine was located in King’s pickup truck.1
This conclusion obviates the necessity of addressing whether King gave valid consent
to the search of the vehicle.2 Nor do we need address whether the police had probable
cause for King's arrest3.
King also contends that his written consent for the search of his home was
involuntary. Based on the six factors which we have found relevant to the
voluntariness issue, we conclude that King's consent was voluntary.4 Although King
was in custody at the time he gave written consent for the search of his home, he had
received Miranda warnings prior thereto, and the record is devoid of evidence that the
officers used threats or coercion to induce the consent. King contends that he was
1
Illinois v. Gates, 462 U.S. 213 (1983); United States v. McSween, 53 F.3d 684 (5th Cir.
1995).
2
United States v. Sutton, 850 F.2d 1083, 1085 (5th Cir. 1988)("Consent and probable
cause are alternative grounds justifying warrantless vehicle searches.").
3
Yohey v. Collins, 985 F.2d 222 (5th Cir. 1993)(issues must be properly briefed to be
preserved for appeal).
4
United States v. Jenkins, 46 F.3d 447 (5th Cir. 1995).
2
never informed of his right to refuse consent, but a showing of voluntariness does not
require proof of knowledge of the right to refuse.5
Finally, King maintains that the district court erred in enhancing his sentence two
levels for possession of a firearm, asserting that there was no evidence that he actively
employed a firearm as required by Bailey v. United States.6 This argument is not
persuasive; Bailey did not involve enhancement under the Sentencing Guidelines. We
have not required the active use of a firearm for enhancement of a sentence.7 A review
of the evidence presented at the sentencing hearing demonstrates that the district court
did not err in assessing King with possession of a firearm during related relevant
conduct.8
The judgment appealed is AFFIRMED.
5
Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
6
516 U.S. 137 (1995).
7
United States v. Marmolejo, 106 F.3d 1213 (5th Cir. 1997).
8
United States v. Vaquero, 997 F.2d 78 (5th Cir. 1993); United States v. Eastland, 989
F.2d 760 (5th Cir. 1993).
3