United States v. Ortiz-Gonzalez , 115 F. App'x 696 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 17, 2004
Charles R. Fulbruge III
Clerk
No. 03-41693
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIGIDO ORTIZ-GONZALEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-181-1
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Brigido Ortiz-Gonzalez appeals following his conditional
guilty plea to felon in possession of a firearm (count one), in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession of
an unregistered firearm (count two), in violation of 26 U.S.C.
§§ 5841, 5861(d) and 5871; illegal re-entry into the United
States after deportation (count three), in violation of 8 U.S.C.
§ 1326(a) and (b); and illegal alien in possession of a firearm
(count four), in violation of 18 U.S.C. §§ 922(g)(5)(A) and
*
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this opinion should not be published and is not precedent except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. 03-41693
-2-
924(a)(2). Ortiz-Gonzalez argues that the district court
erroneously denied his motion to suppress evidence.
In reviewing the denial of a motion to suppress evidence
obtained pursuant to a search warrant, we determine: (1) whether
the good-faith exception to the exclusionary rule applies; and
(2) if not, whether probable cause supported the warrant. United
States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). Ortiz-
Gonzalez argues that the good-faith exception does not apply
because the affidavit on which the search warrant was based was
so lacking in indicia of probable cause that no reasonable
officer could rely on the warrant in good faith. The affidavit
was based on the personal observation by a confidential
informant, who had previously provided reliable, credible
information leading to the seizure of narcotics and the arrest of
narcotics traffickers. The informant had been in Ortiz-
Gonzalez's residence and observed marijuana. A common sense
reading of the affidavit supports the conclusion that the
informant had been in the residence within the preceding 72
hours. We conclude that the officers relied in good faith on the
warrant and that the district court did not err in denying the
suppression motion. See United States v. Satterwhite, 980 F.2d
317, 320 (5th Cir. 1992); United States v. McKnight, 953 F.2d 898
(5th Cir. 1992).
Ortiz-Gonzalez also argues that his convictions and
sentences for felon in possession of a firearm and illegal alien
No. 03-41693
-3-
in possession of a firearm, which were based on the same weapon,
are multiplicitous and violate double jeopardy. The Government
concedes that our decision in United States v. Munoz-Romo, 989
F.2d 757, 759-60 (5th Cir. 1993), is controlling. Ortiz-Gonzalez
is correct that his convictions on counts one and four violate
his rights against double jeopardy. See id. On remand the
district court therefore must vacate the conviction on either
count one or count four and resentence Ortiz-Gonzalez. Id.
Ortiz-Gonzalez similarly argues that his convictions on
counts three and four are also multiplicitous. We decline to
address this issue as the district court's action on remand may
render the issue moot. See United States v. Marroquin, 885 F.2d
1240, 1245 (5th Cir. 1989).
AFFIRMED in part, VACATED in part, and REMANDED.