United States v. Terry ( 2023 )

Case: 22-20173 Document: 00516747050 Page: 1 Date Filed: 05/11/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-20173
FILED
May 11, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jonas Terry,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-790-1
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
Jonas Terry was found guilty after a bench trial of possession of a
firearm by a convicted felon and possession of a machinegun, in violation of
18 U.S.C. §§ 922(g)(1), (o)(1), and 924(a)(2). The district court sentenced
Terry within the guidelines range to concurrent terms of 115 months of
imprisonment and three years of supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20173 Document: 00516747050 Page: 2 Date Filed: 05/11/2023
No. 22-20173
Terry appeals the denial of his motion to suppress the evidence found
in his vehicle following a traffic stop. We review the district court’s factual
findings with respect to a motion to suppress evidence for clear error and the
legality of police conduct de novo, viewing the evidence in the light most
favorable to the prevailing party. United States v. Pack, 612 F.3d 341, 347 (5th
Cir.), opinion modified on denial of reh’g, 622 F.3d 383 (5th Cir. 2010).
Testimony established that prior to the stop, officers had information
that Terry was involved in narcotics transaction and had just engaged in what
appeared to be drug related activities. Upon being stopped for the traffic
violation, Terry immediately exited his vehicle, locked it, and walked away
from the vehicle, contradicting the officers’ commands to get back in the car.
Terry possessed large amounts of cash in small denominations consistent
with drug dealing, carried a small pocketknife with what appeared to be
narcotics residue, and several rocks of what appeared to be crack cocaine
were on the ground near the driver’s side door. Based on the officers’
experience, inferences, and deductions about this cumulative evidence,
probable cause existed that Terry’s vehicle contained drugs. See United
States v. Henry, 37 F.4th 173, 176-77 (5th Cir. 2022); United States v.
McSween, 53 F.3d 684, 6876 (5th Cir. 1995). Thus, the warrantless search of
his vehicle was permissible under the automobile exception to the Fourth
Amendment’s warrant requirement. See United States v. Beene, 818 F.3d 157,
164 (5th Cir. 2016); United States v. Guzman, 739 F.3d 241, 245-46 (5th Cir.
2014). There is “no separate exigency requirement.” Maryland v. Dyson,
527 U.S. 465, 466-67 (1999).
Terry also appeals his sentence, arguing that the district court erred
when it enhanced his offense level by four levels under U.S.S.G.
§ 2K2.1(b)(6)(B) for using or possessing a firearm in connection with another
felony offense. We review the district court’s interpretation and application
of the Guidelines de novo and its fact findings for clear error. United States
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No. 22-20173
v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). “A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole.” United States v.
Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (internal quotation marks and
citation omitted).
Evidence that officers found a digital scale with cocaine residue on it
in the door pocket of the driver’s door and an automatic firearm underneath
the driver’s seat, together with the evidence detailed above that supplied
probable cause to search the car, supports the district court’s application of
§ 2K2.1(b)(6)(B). In light of the unrebutted evidence, the district court’s
finding that Terry was involved in drug trafficking offenses was plausible in
light of the record as a whole. See Alcantar, 733 F.3d at 146-48; Trujillo, 502
F.3d at 357; § 2K2.1, comment. (n.14(B)(ii)). Terry’s unsupported assertion
that the cocaine he possessed was a user quantity only does not demonstrate
clear error in the district court’s plausible contrary inference. See United
States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010). Thus, the district court’s
application of § 2K2.1(b)(6)(B) was not clearly erroneous. See Alcantar, 733
F.3d at 146.
The judgment of the district court is AFFIRMED.
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