United States v. James Edward Hicks ( 1997 )

___________
No. 96-1580
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
James Edward Hicks, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 5, 1997
Filed: February 7, 1997
___________
Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
___________
PER CURIAM.
James Hicks appeals his conviction and 112-month sentence imposed by
the district court1 following his conditional guilty plea to possessing an
unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. We
affirm.
Hicks argues that the district court erred in denying his motion to
suppress the shotgun found in his car at the time of his arrest. We
conclude the district court did not clearly err, as the evidence in the
record shows the officers had probable cause to arrest Hicks; thus, the
contemporaneous search of the car was valid as a search incident to arrest
and as an inventory search. See United States v. Clapp, 46 F.3d 795, 799
(8th Cir. 1995) (standard of review); United States v. Cummins, 920 F.2d
498, 502 (8th Cir.
1
The HONORABLE WILLIAM R. WILSON, JR., United States District
Judge for the Eastern District of Arkansas.
1990), cert. denied, 502 U.S. 962 (1991).
Hicks also argues that the district court erred in denying his
request for a downward departure under U.S. Sentencing Guidelines Manual
§ 4A1.3 (1995) (over-represented criminal history). Hicks has not shown
nor does the record indicate that the district court was unaware of its
authority to depart from the Guidelines range. Consequently, we cannot
review the district court's discretionary refusal to depart. See United
States v. Elkins, 16 F.3d 952, 954 (8th Cir. 1994).
Finally, we reject Hicks's challenge to the constitutionality of
section 5861(d). See United States v. Aiken, 974 F.2d 446, 448-49 (4th
Cir. 1992); United States v. Parker, 960 F.2d 498, 500 (5th Cir. 1992); see
also United States v. Hale, 978 F.2d 1016, 1018 (8th Cir. 1992), cert.
denied, 507 U.S. 997 (1993).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-2-