United States v. Howard ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11251
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNEST LEE HOWARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:98-CR-84-A-1
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June 2, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Ernest Lee Howard has appealed his conviction and sentence
for controlled substance and firearms violations. For the
following reasons, we AFFIRM.
After DaJuan Pratt, a fifteen-year-old employee at a “weed
house” maintained by Howard and codefendant Alfred Brooks,
mistakenly shot and fatally wounded a seven-year-old boy with a
firearm supplied by Howard, Pratt hid the weapon under a mattress
at Howard’s nearby residence. Later that day, Pratt authorized
*
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that this opinion should not be published and is not precedent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. 98-11251
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the investigating officer to enter the residence and retrieve the
weapon. The district court denied Howard’s motion to suppress
the firearm.
We find no error, clear or otherwise, in the district court’s
finding that DaJuan Pratt had apparent authority to authorize
authorities to enter Howard’s dwelling to retrieve the firearm.
United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997),
cert. denied, 118 S. Ct. 726, 1804 (1998). We likewise reject
Howard’s suggestion that Pratt’s consent to the search was
involuntary due to his age and custodial status. United States
v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993); see also United
States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1231-32 (10th Cir.
1998).
The record supports the district court’s finding that Howard
acted with malice aforethought when he supplied a teenager with a
weapon and instructed him to use it if someone came in the back
door. Thus, the district court correctly applied the sentencing
guidelines for second degree murder to determine Howard’s base
offense level. United States v. Branch, 91 F.3d 699, 711, 734
(5th Cir. 1996), cert. denied, 520 U.S. 1185 (1997); United
States v. Gonzales, 996 F.2d 88, 89-92 (5th Cir. 1993); see
U.S.S.G. § 2K2.1(c)(1)(B).
While Howard waited nearby in a car, his codefendant,
Brooks, threatened a witness not to reveal his and Howard’s names
to the police. Howard challenges the district court’s
determination that Howard had obstructed justice because the
intimidation of the witness was jointly undertaken by both Howard
No. 98-11251
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and Brooks. We find no error in the enhancement of Howard’s
sentence for obstruction of justice. United States v. Ismoila,
100 F.3d 380, 397 (5th Cir. 1996), cert. denied, 520 U.S. 1219,
1247 (1997).
AFFIRMED.