United States v. Howard

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11251 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNEST LEE HOWARD,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:98-CR-84-A-1 - - - - - - - - - -

June 2, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Ernest Lee Howard has appealed his conviction and sentence

for controlled substance and firearms violations. For the

following reasons, we AFFIRM.

After DaJuan Pratt, a fifteen-year-old employee at a “weed

house” maintained by Howard and codefendant Alfred Brooks,

mistakenly shot and fatally wounded a seven-year-old boy with a

firearm supplied by Howard, Pratt hid the weapon under a mattress

at Howard’s nearby residence. Later that day, Pratt authorized

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11251 -2-

the investigating officer to enter the residence and retrieve the

weapon. The district court denied Howard’s motion to suppress

the firearm.

We find no error, clear or otherwise, in the district court’s

finding that DaJuan Pratt had apparent authority to authorize

authorities to enter Howard’s dwelling to retrieve the firearm.

United States v. Gonzales, 121 F.3d 928, 938 (5th Cir. 1997),

cert. denied, 118 S. Ct. 726, 1804 (1998). We likewise reject

Howard’s suggestion that Pratt’s consent to the search was

involuntary due to his age and custodial status. United States

v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993); see also United

States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1231-32 (10th Cir.

1998).

The record supports the district court’s finding that Howard

acted with malice aforethought when he supplied a teenager with a

weapon and instructed him to use it if someone came in the back

door. Thus, the district court correctly applied the sentencing

guidelines for second degree murder to determine Howard’s base

offense level. United States v. Branch, 91 F.3d 699, 711, 734

(5th Cir. 1996), cert. denied, 520 U.S. 1185 (1997); United

States v. Gonzales, 996 F.2d 88, 89-92 (5th Cir. 1993); see

U.S.S.G. § 2K2.1(c)(1)(B).

While Howard waited nearby in a car, his codefendant,

Brooks, threatened a witness not to reveal his and Howard’s names

to the police. Howard challenges the district court’s

determination that Howard had obstructed justice because the

intimidation of the witness was jointly undertaken by both Howard No. 98-11251 -3-

and Brooks. We find no error in the enhancement of Howard’s

sentence for obstruction of justice. United States v. Ismoila,

100 F.3d 380, 397 (5th Cir. 1996), cert. denied, 520 U.S. 1219,

1247 (1997).

AFFIRMED.