United States v. Ferguson ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 28, 2009
No. 08-30712
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KEVIN M FERGUSON, also known as Kevin Mercel Ferguson
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50029-1
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Kevin M. Ferguson appeals the district court’s denial of his motion to
suppress evidence and his sentence imposed following a jury conviction for
conspiracy to distribute 50 grams or more of a mixture and substance containing
a detectable amount of cocaine base and possession with intent to distribute 50
grams or more of a mixture and substance containing a detectable amount of
cocaine powder.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30712
Ferguson first argues that his Fourth Amendment rights were violated
when he was stopped, detained, and seized without a warrant and without
probable cause. He contends that, as a result, any and all evidence seized from
and derived from his warrantless arrest and his post-arrest statement should
have been suppressed.
Based upon the testimony presented at the hearing on Ferguson’s motion
to suppress, viewed in the light most favorable to the Government, we conclude
that the agents had probable cause to believe that Ferguson was participating
in a drug transaction and, hence, to stop the vehicle driven by Ferguson and
effect his arrest. See Illinois v. Gates, 462 U.S. 213, 237 (1983); United States v.
Antone, 753 F.2d 1301, 1304 (5th Cir. 1985). Accordingly, the district court did
not err in denying Ferguson’s motion to suppress. The judgment of conviction
is affirmed.
Ferguson next argues that his sentence is excessive in view of the United
States Sentencing Commission’s retroactive amendment of U.S.S.G. § 2D1.1
reducing the base offense level for cocaine base by two levels.
Because Ferguson did not challenge the crack-powder disparity or the
reasonableness of his sentence in the district court, review is limited to plain
error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied,
128 S. Ct. 2959 (2008). To show plain error, the appellant must show an error
that is clear or obvious and that affects his substantial rights. United States v.
Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If
the appellant makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.
Ferguson has not shown that his sentence was procedurally or
substantively unreasonable. He has not argued or shown that the district court
erred in calculating his guidelines sentencing range at the time of his original
sentencing. With a total offense level of 40 and a criminal history category of I,
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No. 08-30712
the applicable guidelines range was 292 to 365 months imprisonment. U.S.S.G.,
Ch. 5, Pt. A. The district court explained the reasons for the sentence it selected,
and there is no suggestion that Ferguson’s sentence is based on clearly erroneous
sentencing facts. See Gall v. United States, 528 S. Ct. 586, 597 (2007). His
sentence of 328 months falls in the mid-range of the applicable Sentencing
Guidelines and, therefore, is presumptively reasonable. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Ferguson was sentenced on December 11, 2003, before Amendment 706
became effective on November 1, 2007. U.S.S.G., App. C, amend. 706, at 226-31
(Supp. Nov. 1, 2007). In December 2007, the Sentencing Commission
determined that the amendment would apply retroactively effective March 3,
2008, so that defendants who were sentenced prior to the effective date of the
amendment may seek a reduced sentence pursuant to 18 U.S.C. § 3582(c). See
U.S.S.G. App. C, amend. 713, at 56 (Supp. Mar. 3, 2008). If Ferguson wishes to
seek a sentence reduction based on the amendment, such relief should be
pursued in the district court in the first instance pursuant to § 3582(c)(2). See
U.S.S.G. § 1B1.10. We express no opinion on the viability of such relief as it
pertains to Ferguson or on the rights to which Ferguson may be entitled in
seeking such relief.
AFFIRMED.
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