United States v. Johnson ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 3, 2004
Charles R. Fulbruge III
Clerk
No. 03-41068
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY LYNN JOHNSON; REISA LYNN PETTIETTE,
Defendants-Appellants.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CR-83-1
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tommy Lynn Johnson (“Johnson”) and Reisa Lynn Pettiette
(“Pettiette”) appeal their jury-trial convictions and sentences
for conspiracy to manufacture, possess with intent to manufacture
and distribute, and distribute methamphetamine and related
charges. Johnson and Pettiette argue that the district court
erred by denying their motions to suppress evidence obtained
during a search of their residence and that the evidence at trial
was insufficient to support their convictions for one count of
*
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this opinion should not be published and is not precedent except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. 03-41068
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possession of a firearm in furtherance of a drug trafficking
offense and the jury’s verdict that the conspiracy involved more
than 50 grams of methamphetamine. Pettiette further asserts that
the district court erred by denying her motion to suppress
evidence obtained during a traffic stop on September 18, 2001,
and that the evidence that she possessed the shotgun was
insufficient to support her convictions for possession of an
unregistered firearm and possession of a firearm in furtherance
of a drug trafficking offense. For the first time on appeal,
Johnson contends that the district court erred by attributing
certain amounts of pseudoephedrine to him in making its drug
quantity determination at sentencing.
Pettiette’s argument that the district court erred by
denying her motion to suppress evidence seized during the traffic
stop on September 18, 2001, is without merit. The district court
correctly concluded that the search of the truck was legal
because Johnson consented to the search. See United States v.
Crain, 33 F.3d 480, 484 (5th Cir. 1994). Furthermore, the
discovery of anhydrous ammonia in an unapproved container in the
truck provided probable cause for her arrest as TEX. HEALTH & SAFETY
CODE ANN. § 481.124 does not require that a field test of
suspected anhydrous ammonia be conducted before a suspect is
arrested and the presence of the anhydrous ammonia in the truck
provided probable cause to arrest all of the occupants of the
truck. See Johnson v. Wright, 509 F.2d 828, 830 (5th Cir. 1975).
No. 03-41068
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The affidavit used to procure the search warrant to search
Johnson’s and Pettiette’s residence was not a “bare bones”
affidavit because it contained factual allegations beyond mere
conclusions that Johnson and Pettiette were involved in illegal
activity. See United States v. Brown, 941 F.2d 1300, 1303 n.1
(5th Cir. 1991). The affidavit provided probable cause for the
issuance of the search warrant even with the challenged portion
referring to Johnson’s and Pettiette’s prior offenses removed.
See United States v. Fooladi, 703 F.2d 180, 184 (5th Cir. 1983).
Accordingly, the district court did not err by denying Johnson’s
and Pettiette’s motion to suppress the evidence obtained during
the search of their residence.
The evidence at trial showed that a short-barreled shotgun
was found in a bedroom in the residence near gas masks and
starting fuel. The residence was small and contained many other
materials used in the manufacture of methamphetamine. A law
enforcement officer testified that Pettiette told him that the
gun was used for the protection of inventory. Although the
circumstances surrounding the testimony about Pettiette’s
statement was questionable, we must consider the statement when
reviewing the sufficiency of the evidence because the testimony
about the statement was not factually impossible. See United
States v. Lopez, 74 F.3d 575, 578 (5th Cir. 1996). Pettiette’s
statement, along with the other evidence presented at trial, was
sufficient to show that the shotgun was possessed in furtherance
No. 03-41068
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of a drug trafficking offense. See United States v. Ceballos-
Torres, 218 F.3d 409, 414-15 (5th Cir. 2000).
As Pettiette lived at the residence where the shotgun was
found and told a law enforcement officer that it was used to
protect inventory, the evidence gave rise to a plausible
inference that she had knowledge of, and access to, the shotgun.
See United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).
Accordingly, the evidence was sufficient to show that Pettiette
constructively possessed the shotgun and to support her
convictions for possession of an unregistered firearm and
possession of a firearm in furtherance of a drug trafficking
offense. See id.The evidence at trial showed that Johnson and Pettiette
could have realistically manufactured 48.4 grams of
methamphetamine from the pseudoephedrine seized from them. The
evidence also showed that receipts for the purchase of over 400
boxes of nasal decongestant were seized from Johnson and
Pettiette during the traffic stop on September 18, 2001, and that
Johnson and Pettiette could have reasonably manufactured 145
grams of methamphetamine from this nasal decongestant. Given
that the receipts evidenced the purchase of a massive quantity of
nasal decongestant and that other materials used in the
manufacture of methamphetamine were seized during the traffic
stop, the jury could reasonably infer that the receipts evidenced
purchases of pseudoephedrine that was used to manufacture
No. 03-41068
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methamphetamine. See United States v. Anderson, 987 F.2d 251,
255-56 (5th Cir. 1993). Accordingly, the evidence was sufficient
to support the jury’s verdict that the conspiracy involved more
than 50 grams of methamphetamine. See United States v. Gourley,
168 F.3d 165, 168-69 (5th Cir. 1999).
Because Johnson did not challenge the district court’s drug
quantity determination below, we review this issue for plain
error only. See United States v. Ocana, 204 F.3d 585, 588-89
(5th Cir. 2000). As sufficient evidence supported Johnson’s
conviction for the quantities of methamphetamine that could have
been produced from the nasal decongestant evidenced in the
receipts, the district court did not err by including these
amounts in its drug quantity determination. See United States v.
Alarcon, 261 F.3d 416, 423 n.3 (5th Cir. 2001). The district
court’s determination of this issue in regards to Pettiette’s
sentence does not affect the propriety of its determination of
the issue in regards to Johnson’s sentence. See United States v.
Montes, 976 F.2d 235, 239 (5th Cir. 1992). Therefore, the
district court did not commit error, plain or otherwise, in
making its drug quantity determination regarding Johnson.
Johnson’s and Pettiette’s convictions and sentences are
AFFIRMED.