United States v. Deffebo , 169 F. App'x 835 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 2, 2006
Charles R. Fulbruge III
Clerk
No. 05-40419
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JOSEPH DEFFEBO, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:03-CR-8-1
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Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
David Joseph Deffebo, Jr., appeals his conviction and sentence
for conspiracy to manufacture and distribute methamphetamine,
possession of a firearm by an unlawful user of a controlled
substance, and maintaining a residence for the purpose of
manufacturing, distributing, or using methamphetamine. He argues
that (1) the district court erred in denying him relief under
Franks v. Delaware, 438 U.S. 154 (1978); (2) the district court
clearly erred in its application of U.S.S.G. §§ 2D1.1 (b)(5)(C),
*
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this opinion should not be published and is not precedent except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. 05-40419
-2-
(c)(10) (2003); and (3) his sentence contravened United States v.
Booker, 125 S. Ct. 738 (2005). We affirm.
Our review of the record convinces us that Deffebo was not
entitled to relief under Franks because the district court
correctly found that any misstatements contained in the search
warrant’s supporting affidavit were the result of mere negligence
on the part of the affiant-officer and were not made either
intentionally or with reckless disregard for the truth. See United
States v. Alvarez, 127 F.3d 372, 373 (5th Cir. 1997).
Consequently, the good-faith exception to the exclusionary rule is
applicable. See id.We further hold that the six-gram quantity of methamphetamine
attributed to Deffebo was supported by statements made during his
co-defendant’s presentence interview and Deffebo’s post-arrest
interview. Therefore, the district court’s U.S.S.G. § 2D1.1(c)(10)
finding did not constitute clear error. See United States v.
Infante, 404 F.3d 376, 393-94 (5th Cir. 2005).
Similarly, the evidence also supported the district court’s
U.S.S.G. § 2D1.1(b)(5)(C) finding that Deffebo “created a
substantial risk of harm to the life of a minor.” The trial
testimony of Felicia Pendergraft and Officer Thomas Moore
established that Pendergraft and her minor child lived in the
apartment adjacent to that of Deffebo in their duplex; that one
morning Pendergraft awoke to an overwhelming smell of fingernail
polish remover, which prompted her to remove her daughter from the
No. 05-40419
-3-
home; and that acetone, an ingredient in fingernail polish remover,
is emitted during the highly volatile red-phosphorus method of
methamphetamine manufacture. From this testimony, it can be
inferred that Pendergraft’s minor child was indeed present in the
duplex during at least one of Deffebo’s red-phosphorous-method
cooks, thereby subjecting the child to a substantial risk of harm
to life.
Finally, we note that post-Booker, “[t]he sentencing judge is
entitled to find by a preponderance of the evidence all the facts
relevant to the determination of a Guideline sentencing range and
all facts relevant to the determination of a non-Guidelines
sentence.” United States v. Mares, 402 F.3d 511, 519 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005). Therefore, Deffebo’s
contention that the district court was precluded from enhancing his
sentence based on facts that had not been either admitted by him or
found beyond a reasonable doubt by his jury is untenable.
AFFIRMED.