United States v. Stevenson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-10321
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID L. STEVENSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(3:00-CR-406-ALL-R)
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Defendant-Appellant David L. Stevenson appeals his conviction
and sentence for being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). He first challenges the
district court’s denial of his motion to suppress the firearms
found in the trunk of his vehicle. There is no merit to
Stevenson’s argument that Fifth Circuit precedent precludes an
officer from using suspicion of illegal window tint as a basis for
reasonable suspicion or probable cause for a traffic stop. He
*
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this opinion should not be published and is not precedent except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.
cites the dissent in United States v. Guerrero-Barajas, 240 F.3d
428, 433 (5th Cir. 2001), a case which, along with United States v.
Villalobos, 161 F.3d 285 (5th Cir. 1998) and United States v. Diaz,
977 F.2d 163 (5th Cir. 1992), is inapposite. “[T]he decision to
stop an automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred.” Whren v.
United States, 517 U.S. 806, 810 (1996). As excessive window tint
is a violation of TEX. TRANSP. CODE § 547.613, and Stevenson’s
windows were darker than was legally permissible, the stop was
supported by probable cause. See Terry v. Ohio, 392 U.S. 1 (1968).
Officer Casey’s testimony that he used the suspected window tint
violation to investigate his suspicion that Stevenson was
impersonating a police officer has no bearing on the analysis: The
subjective motivation of a law enforcement agent is irrelevant when
his actions are based on objective factors that justify such
behavior. See Whren, 517 U.S. at 813; United States v. Sanchez-
Pena, 336 F.3d 431, 437 (5th Cir. 2003).
Also lacking merit is Stevenson’s argument that the search and
seizure from his vehicle of a police baton and handcuffs was not
reasonably related in scope to the circumstances that justified the
stop, see Terry v. Ohio, 392 U.S. at 1. Stevenson has presented
nothing to contradict Officer Casey’s testimony that he saw the
baton and handcuffs, items possessed by police officers, through
the window of the vehicle when he approached with the tint meter.
This sequence of events is corroborated by the videotape introduced
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at the suppression hearing. The baton and cuffs were in “plain
view,” and, because they might be useful in establishing that
Stevenson was guilty of impersonating a police officer, Officer
Casey’s seizure of those items was lawful. United States v. Hill,
19 F.3d 984, 989 (5th Cir. 1994).
In calculating Stevenson’s guideline range of imprisonment,
the probation officer assessed a two-level adjustment for
obstruction of justice, pursuant to U.S.S.G. § 3C1.1, because
Stevenson had perjured himself at trial regarding his ownership and
possession of the weapons in the vehicle’s trunk and his prior
conviction for bank embezzlement. There is no factual basis for
Stevenson’s argument that his objection to the two-level adjustment
obligated the court to make independent findings on each element of
his alleged perjury because he did not actually object to the
adjustment. Even construing his argument as one that the court
erred in imposing the two-level adjustment, he cannot prevail
because he has not shown error, much less plain error. See United
States v. Olano, 507 U.S. 725, 732-35 (1993).
Over Stevenson’s objection, the district court adopted the
Presentence Report’s (PSR’s) four-level adjustment pursuant to
§ 2K2.1(b)(5), because Stevenson used or possessed a firearm in
connection with another felony offense, viz., impersonating a
public servant. Stevenson presented no evidence at the sentencing
hearing to rebut this factual conclusion in the PSR. See United
States v. Peters, 283 F.3d 300, 314 (5th Cir.), cert. denied, 536
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U.S. 934 (2002). In light of the evidence presented at the
suppression hearing, it was not clear error for the district court
to conclude that Stevenson had the intent to induce Officer Casey
and others to submit to his pretended official authority or to rely
on his pretended official acts. TEX. PENAL CODE § 37.11(a)(1);
United States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2002).
Stevenson’s argument that 18 U.S.C. § 922(g)(1) is
unconstitutional is foreclosed by prior precedent to the contrary.
United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003);
United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).
Stevenson asserts that the district court erred in denying his
motion for mistrial after the government, in closing argument,
referred to his defense as the “O. J. Simpson defense.” Any
prejudicial effect, however, was minimal. See United States v.
Newell, 315 F.3d 510, 527 (5th Cir. 2002); see e.g., United States
v. Papajohn, 212 F.3d 1112, 1121 (8th Cir. 2000). Furthermore, the
court sustained counsel’s objection, thereby putting the jury on
notice that the remark was improper. In light of the ample
evidence supporting the charge that Stevenson was a felon in
possession of a weapon, the district court cannot be said to have
abused its discretion. See United States v. Griffin, 324 F.3d 330,
361 (5th Cir. 2003).
AFFIRMED.
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