United States v. Carter ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10191
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY LEE CARTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-294-ALL-T
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November 1, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Bobby Lee Carter (Carter) appeals his conditional guilty
plea conviction for possession of firearms by a convicted felon.
Carter challenges the district court’s denial of his motion to
suppress as well as the district court’s calculation of his base
offense level under U.S.S.G. § 2K2.1(a).
Carter, in his pre-trial motion to suppress, argued that
Deputy United States Marshals and ATF agents gained consent to
search Carter’s house under the pretext that they were looking
for Carter’s fugitive stepson, when, in fact, they were looking
*
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that this opinion should not be published and is not precedent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. 99-10191
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for firearms that could be evidence of a crime. This court
reviews a ruling on a motion to suppress based upon live
testimony under the clearly erroneous standard for findings of
fact and de novo for questions of law. United States v. Muniz-
Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495
U.S. 923 (1990). We have reviewed the record and the briefs of
the parties and conclude that the district court did not clearly
err in finding that the officers’ primary purpose in searching
Carter’s house was to look for Carter’s stepson. We further
conclude that the seizure of the firearms was lawful. Even when
officers have no basis for suspecting a particular individual,
they may generally ask questions of that individual. Florida v.
Bostick, 501 U.S. 429, 435 (1991). Such encounters are
consensual as long as a reasonable person would feel free to
disregard the officers and go about his business. Id. at 437.
Nothing in the record indicates that Carter felt compelled to
answer the ATF agent’s questions, or that he would have been
prevented from walking away and going about his business.
Carter additionally argues, for the first time on appeal,
that the deputy marshals and ATF agents did not have authority to
execute the Dallas County arrest warrant for Carter’s stepson.
At the time of entry into Carter’s house, Texas state law gave
these federal officers the power to search, seize and arrest.
Tex. Code Crim. P. Ann. art. 2.122. Carter’s argument cannot
therefore satisfy the plain error standard. United States v.
Spires, 79 F.3d 464, 465 (5th Cir. 1996).
No. 99-10191
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Finally, Carter argues that the district court incorrectly
used a base offense level of 20 on the erroneous assumption that
the Norinco SKS he possessed was a firearm described in 18 U.S.C.
§ 921(a)(30). Because Carter raises this argument for the first
time on appeal, this court will review for plain error only.
Spires, 79 F.3d at 465. A sentencing court is required only to
rule on any unresolved objections to the PSR, and “[f]acts
contained in a PSR are considered reliable and may be adopted
without further inquiry if the defendant fails to present
competent rebuttal evidence.” Fed. R. of Crim. P. 32(c)(1);
United States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
Moreover, when the nature of the claimed error is a question of
fact, the possibility that such a finding could rise to the level
of obvious error required to meet part of the standard for plain
error is remote. Robertson v. Plano City of Texas, 70 F.3d 21,
23 (5th Cir. 1995). There is no basis from which to conclude
that the court’s finding was erroneous and no plain error.
AFFIRMED.