United States v. Thomas , 193 F. App'x 291 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 19, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-11474
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY LAWAN THOMAS, also known as
Jock Lamont Thomas,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-9-ALL
_________________________________________________________________
Before JOLLY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant Thomas conditionally pled guilty to illegal
possession of a firearm, reserving the right to appeal the District
Court’s denial of his motion to suppress evidence. Thomas now
appeals that denial and the District Court’s imposition of an
above-Guidelines sentence. We affirm.
Thomas alleges no facts to sustain a constitutional violation,
regarding either the initial police approach or the subsequent
search of his vehicle. Thomas was parked on a private driveway of
which he was not the owner, and he gives no account of his relation
*
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this opinion should not be published and is not precedent except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 the owner or the purpose of his visit. See United States v.
Phillips, 382 F.3d 489, 495 (5th Cir. 2004). He does not
contradict that his car was clearly visible from the street and the
driveway accessible to the public. See United States v. Hatfield,
333 F.3d 1189, 1194 (10th Cir. 2003); Maisano v. Welcher, 940 F.2d
499, 502 (9th Cir. 1991). The actual search of Thomas’s car was
incident to an unchallenged lawful arrest. The fact that Thomas
was already under control of the officers is of no consequence.
See New York v. Belton, 453 U.S. 454 (1981); Thornton v. United
States, 541 U.S. 615 (2004).
As for Thomas’s sentence, although the District Court was
silent on what sentence it would impose under advisory Guidelines,
its articulated reasons for departing from the Guidelines show
beyond a reasonable doubt that the Fanfan error here was harmless.
The court held that the suggested criminal history category
“significantly under-represents the seriousness of [Thomas’s]
criminal history and the likelihood that he will commit further
crimes.” The District Court catalogued Thomas’s past crimes,
focusing on the “assaultive pattern of behavior . . . which has
lasted the past 17 years” –- aggravated assault, evading arrest,
assault with bodily injury, another assault with bodily injury,
plus miscellaneous drug offenses. The District Court then departed
according to the policy statement in U.S.S.G. § 4A1.3. It is
therefore clear that the advisory nature of the Sentencing
Guidelines would not have affected the District Court’s judgment.
2
Thomas’s sentence was reasonable and the upward departure not an
abuse of discretion.
Because we affirm the District Court’s denial of the motion to
suppress, and because we find that any error in sentencing was
harmless beyond a reasonable doubt, Thomas’s conviction and
sentence are
AFFIRMED.
3