United States v. DeLong ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2006
Charles R. Fulbruge III
Clerk
No. 04-11117
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES ERIC DeLONG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:03-CR-10-ALL
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Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Charles Eric DeLong appeals his conviction and sentence
following his guilty plea to possession of a firearm in furtherance
of a drug trafficking offense and to possession with the intent to
distribute methamphetamine. DeLong argues that the district court
erred in denying his motion to suppress evidence found after
officers executed an investigative stop of a vehicle in which he
was a passenger. He argues that the officers who stopped the
vehicle did not have a reasonable suspicion that a crime had been
*
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opinion should not be published and is not precedent except under the limited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.
or was about to be committed. We review the legality of an
investigative stop de novo. See United States v. Jaquez, 421 F.3d
338, 341 (5th Cir. 2005).
Law enforcement officers may initiate an investigative stop
if they have reasonable suspicion that criminal activity is afoot.
Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.
2000). The fact that a stop is made in a high crime area alone
does not supply reasonable suspicion. See Illinois v. Wardlow, 528
U.S. 119, 124 (2000). Rather, reasonable suspicion must be
supported by particular and articulable facts, which, taken
together with rational inferences from those facts, reasonably
warrant an intrusion. Goodson, 202 F.3d at 736. The police
officers’ testimony that the cemetery had previously been the scene
of vandalism, coupled with the testimony that the vehicles entered
the cemetery in tandem late at night and then backed out when the
patrol car passed, supports the district court’s determination that
there was reasonable suspicion warranting the stop. The testimony
that the cemetery was in an isolated area and that building
materials were left unattended further supports the court’s
determination of a reasonable suspicion. We thus hold that the
district court did not err in denying the motion to suppress the
evidence seized as a result of the search. See Jaquez, 421 F.3d at
341.
DeLong next argues that the district court committed
reversible error when it sentenced him under the mandatory
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guidelines system held unconstitutional in United States v. Booker,
543 U.S. 220 (2005), and that the error was not harmless beyond a
reasonable doubt. He also argues that his sentence runs afoul of
Booker and the Sixth Amendment because it was based on facts not
admitted by him.
DeLong entered his guilty plea pursuant to a plea agreement.
Although the plea agreement preserved DeLong’s right to appeal the
district court’s denial of his motion to suppress, DeLong waived
the right to appeal his sentence except in the case of a sentence
exceeding the statutory maximum, a sentence representing an upward
departure from the Sentencing Guidelines range, or an arithmetic
error at sentencing. The Government seeks to enforce the waiver.
DeLong argues that because Booker was not the law at the time of
his sentencing, he could not have executed a valid waiver of his
rights under Booker.
“The language in [an] appellate waiver must be afforded its
plain meaning in accord with the intent of the parties at the time
the plea agreement was executed.” United States v. Cortez, 413
F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct. 502 (2005).
Thus, “an otherwise valid appeal waiver is not rendered invalid, or
inapplicable to an appeal seeking to raise a Booker or Fanfan issue
(whether or not that issue would have substantive merit), merely
because the waiver was made before Booker.” United States v.
Burns, 433 F.3d 442, 450 (5th Cir. 2005). Because DeLong executed
a valid waiver of his appellate rights with respect to his
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challenge to his sentence, we dismiss this portion of his appeal.
See id. at 451.
AFFIRMED IN PART; DISMISSED IN PART.
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