United States v. Scott

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 31, 2004
Charles R. Fulbruge III
Clerk
No. 03-51333
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WINSTON GEORGE SCOTT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-03-CR-170-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Following a jury trial, Winston George Scott was found
guilty of one charge of aiding and abetting possession of between
100 and 1000 kilograms of marijuana with intent to distribute.
The district court sentenced him to 63 months in prison and a
five-year term of supervised release. Scott now appeals his
conviction and sentence.
Scott first argues that the district court erred by denying
his motion to suppress the marijuana that was found in his truck.
*
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this opinion should not be published and is not precedent except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. 03-51333
-2-
Scott’s arguments on this issue are unavailing. The district
court found that a dog that had been trained to detect illegal
drugs, including marijuana, alerted to Scott’s truck while a
Border Patrol officer was making inquiries as to his citizenship.
This factual finding is not clearly erroneous and provides a
sufficient basis for the district court’s conclusion that neither
the agent’s initial decision to detain Scott nor the subsequent
search of his truck was unconstitutional. See United States v.
Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003); United States v.
Hunt, 253 F.3d 227, 229-30 (5th Cir. 2001).
Scott’s argument that his truck should be considered his
home for Fourth Amendment purposes lacks merit. See Pennsylvania
v. Labron, 518 U.S. 938, 940 (1996) (per curiam); see also
California v. Carney, 471 U.S. 386, 392-94 (1985). Scott has not
shown plain error in connection with his argument that his Fourth
Amendment rights were violated when the dog stepped onto the
stairs leading to the cab of his truck. See United States v.
Maldonado, 42 F.3d 906, 909-12 (5th Cir. 1995). Finally, Scott’s
argument that the search was improper because he did not consent
to it lacks merit. The search was based on probable cause and
was thus constitutional. See United States v. Portillo-Aguirre,
311 F.3d 647, 652 (5th Cir. 2002). Scott has not shown that the
district court erred in denying his motion to suppress.
Scott likewise has not shown that the district court erred
in denying his request for a reduction to his base offense level
No. 03-51333
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due to his alleged status as a minor participant in the offense
of conviction. Scott was not entitled to this adjustment because
his role was limited to that of a courier. See United States v.
Pofahl, 990 F.2d 1456, 1485 (5th Cir. 1993). Scott’s act of
transporting a single large shipment of drugs, as well as the
fact that he was sentenced only for activities in which he
participated, provide adequate bases for denying the requested
reduction. See United States v. Atanda, 60 F.3d 196, 199 (5th
Cir. 1995); United States v. Gallegos, 868 F.2d 711, 713 (5th
Cir. 1989).
The judgment of the district court is AFFIRMED.