United States v. Mack ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51102
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE LOUIS MACK; JIMMY T. FRIERSON,
Defendants-Appellants.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-172-H
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May 22, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Willie Mack appeals his jury-trial conviction and sentence
for possession with intent to distribute marijuana and the
related conspiracy in violation of 21 U.S.C. §§ 841, 846.
Codefendant Jimmy Frierson appeals his sentence. Mack also has
filed an “Emergency Motion” in which he asks this court to strike
his counsel’s brief, or alternatively, to allow Mack to obtain
new appellate counsel or file a supplemental brief pro se.
*
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that this opinion should not be published and is not precedent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. 00-51102
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Because the Emergency Motion exceeds the 20-page limit for
motions, Mack has filed a motion for leave to file the Emergency
Motion.
Mack’s motion to file a motion in excess of the 20-page
limit is DENIED. FED. R. APP. P. 27(d)(2). In addition to
exceeding the page limit by 40 pages, the Emergency Motion is an
improper attempt to employ hybrid representation and will not be
considered. See Smith v. Collins, 977 F.2d 951, 962 (5th Cir.
1992); 5TH CIR. R. 28.7.
Mack, through appointed counsel, argues on appeal that his
trial counsel rendered ineffective assistance. The record has
not been adequately developed for this court to consider the
ineffective-assistance claims raised on direct appeal. See
United States v. Haese, 162 F.3d 359, 363-64 (5th Cir. 1998).
Mack contends that the district court erred by refusing to
suppress evidence found inside a suitcase, and in some clothing,
in vehicle during an inventory search. An inventory search of a
seized vehicle is considered reasonable and does not violate the
Fourth Amendment if it is “conducted pursuant to standardized
regulations and procedures that are consistent with
(1) protecting the property of the vehicle's owner, (2)
protecting the police against claims or disputes over lost or
stolen property, and (3) protecting the police from danger.”
United States v. Lage, 183 F.3d 374, 380 (5th Cir. 1999)
(citation omitted).
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Because the district court conducted a suppression hearing
during which live testimony was adduced, we “accept the trial
court’s factual findings unless clearly erroneous or influenced
by an incorrect view of the law.” United States v. Alvarez,
6 F.3d 287, 289 (5th Cir. 1993). Questions of law, including
whether the district court’s ultimate conclusions of Fourth
Amendment reasonableness are correct, are reviewed de novo.
United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998). The
district court found that the evidence was the product of a
routine inventory conducted according to standardized procedures,
and the hearing evidence adequately supports the court’s
conclusion. There was no error in the district court’s ruling.
Mack contends that the district court should have granted
his motion for an intradistrict change of venue because he was
arrested in the Pecos Division Western District of Texas but
tried in the El Paso Division of the Western District of Texas.
Mack has a Sixth Amendment right to be tried in the district in
which the alleged crime occurred. In re Chesson, 897 F.2d 156,
158 (5th Cir. 1990); see also FED. R. CRIM. P. 18. The record
shows that the crime occurred in the Western District of Texas.
Mack had no constitutional right to be tried in a particular
division within the district. United States v. McKinney, 53 F.3d
664, 673 (5th Cir. 1995). “A strong showing of prejudice is
required to justify an intradistrict transfer,” United States v.
Gourley, 168 F.3d 165, 171 (5th Cir. 1999) (quotation omitted),
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and we review the refusal to order an intradistrict transfer only
for abuse of discretion. McKinney, 53 F.3d at 673. Mack fails
to show that the district court abused its discretion by not
transferring the case to the Pecos Division. See Gourley, 168
F.3d at 171. Mack’s arguments that he was entitled to a jury
instruction on venue are inapplicable. See United States v.
Winship, 724 F.2d 1116 (5th Cir. 1984) (not addressing
intradistrict venue).
Mack contends that the district court misapplied the
sentencing guidelines by including as relevant drug quantity
cocaine found among the bundles of marijuana that were the object
of the conspiracy. This argument is frivolous because the
district court excluded the cocaine from the relevant-conduct
amount in accordance with Mack’s objection in the trial court.
Mack’s conviction and sentence are AFFIRMED.
Appellant Jimmy Frierson contends that his total offense
level was improperly increased by two levels for obstruction of
justice. Section 3C1.1 of the sentencing guidelines provides for
a two-level increase if “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration
of justice during the course of the investigation, prosecution,
or sentencing of the instant offense.” See United States v.
Storm, 36 F.3d 1289, 1295 (5th Cir. 1994) (quoting U.S.S.G.
§ 3C1.1). The conduct to which the adjustment applies includes
(1) “threatening, intimidating, or otherwise unlawfully
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influencing a codefendant, witness or juror, directly or
indirectly, or attempting to do so”; (2) “suborning or attempting
to suborn perjury”; or (3) “producing or attempting to produce a
false” document. U.S.S.G. § 3C1.1, comment. (nn. 4(a-c)).
The district court’s application of the sentencing
guidelines is reviewed de novo, and its findings of fact, such as
whether the defendant obstructed justice, are reviewed for clear
error. United States v. Huerta, 182 F.3d 361, 364 (5th Cir.
1999), cert denied, 528 U.S. 1191 (2000). Where a factual
finding is plausible in light of the record as a whole, it is not
clearly erroneous. Id. The district court’s conclusion that
Frierson wilfully obstructed justice was supported by trial
testimony showing that Frierson attempted to persuade or coerce a
codefendant not to testify, and the record shows that he signed
motions that relied on a false affidavit. The district court’s
finding of willful obstruction of justice is plausible in light
of the record and was not clear error. Frierson’s offense level
was properly increased by two levels for obstruction of justice.
His sentence is AFFIRMED.
The judgment of the district court is AFFIRMED. All motions
are DENIED.