United States v. Fisher

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11311 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WADE FISHER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CR-217-ALL-P - - - - - - - - - -

October 27, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Richard Wade Fisher appeals his conviction and sentence for

being a felon in possession of explosive materials which were

shipped and transported in interstate commerce, in violation of

18 U.S.C. §§ 842(i)(1), 844(a). The district court did not err

in denying Fisher’s motion to suppress. The affidavit in support

of the search warrant was sufficiently detailed and the informant

had a sufficient basis of knowledge to remove it from the “bare

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11311 -2-

bones” category. See United States v. Satterwhite, 980 F.2d 317,

321-22 (5th Cir. 1992); United States v. Jackson, 818 F.2d 345,

348 (5th Cir. 1987). Whether or not the affidavit established

probable cause, the officers executing the warrant acted in good

faith reliance on it. See United States v. Leon, 468 U.S. 897,

922-23 (1984); United States v. Harper, 802 F.2d 115, 119 (5th

Cir. 1986).

The district court did not abuse its discretion in refusing

to allow use of a government witness’s 13-year-old rape

conviction for impeachment purposes. Fisher had not offered any

circumstances that might be construed as exceptional, nor has he

established that the probative value of the rape conviction

substantially outweighs its prejudicial effect. See Fed. R.

Evid. 609(b); United States v. Hamilton, 48 F.3d 149, 154 (5th

Cir. 1995); United States v. Cathey, 591 F.2d 268, 276 (5th Cir.

1979).

The district court’s conclusion that Fisher’s criminal

history category underrepresented the seriousness of his criminal

past was not clearly erroneous. Although the district court

should not have considered Fisher’s arrests, the error was

harmless since it did not affect the court’s selection of the

sentence imposed. See Williams v. United States, 503 U.S. 193,

200-01 (1992); U.S.S.G. §§ 4A1.2 comment. (n.3), 4A1.3. The

court provided acceptable reasons for the departure, and the No. 98-11311 -3-

departure was reasonable. See United States v. Pennington, 9

F.3d 1116, 1118 (5th Cir. 1993).

The district court’s refusal to grant Fisher a second

continuance of the sentencing hearing so that he could prepare

argument on the upward departure was not an abuse of discretion.

See United States v. Peden, 891 F.2d 514, 519 (5th Cir. 1989).

AFFIRMED.