United States v. Inman

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 6, 2002
• Docket: 01-50671
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50671 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERALD WAYNE INMAN, also known as Gerald Inman,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CR-64-5 -------------------- May 2, 2002

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Gerald Wayne Inman (“Inman”) appeals his convictions and

sentences for a methamphetamine-distribution conspiracy and

possession with intent to distribute amphetamine. Inman first

contends that the district court erred in not suppressing evidence

seized pursuant to a search warrant because he alleged that the

warrant did not describe the place to be searched with

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50671 -2-

particularity and thus violated the Fourth Amendment. Inman

concedes that he did not file a motion to suppress the seized

evidence in the district court. Because Inman failed to move to

suppress the evidence seized pursuant to the allegedly

unconstitutional search warrant, he waived the right to contest the

admission of the evidence and is barred from raising the issue in

this appeal. See United States v. Chavez-Valencia, 116 F.3d 127,

129-33 (5th Cir. 1997).

Inman next contends that the evidence was insufficient to

convict him of conspiracy and that the evidence, at most,

established a buyer-seller relationship.1 He contends that the

evidence was insufficient to convict him of possession of

amphetamine and that the indictment was constructively amended

because the evidence showed that the substance was methamphetamine,

not amphetamine.

A reasonable jury could have found from the testimony

that both Inman and one of his methamphetamine suppliers knew that

the drugs were intended for redistribution; thus, the evidence was

sufficient to establish a drug distribution conspiracy. See United

States v. Casel, 995 F.2d 1299, 1306 (5th Cir.), cert. denied,

Williams v. United States, 510 U.S. 978 (1993). In light of a Drug

Enforcement Administration forensic chemist’s testimony that the

substance possessed by Inman was methamphetamine hydrochloride, a

1 Inman’s challenge to the sufficiency of evidence to support his stolen motor vehicle conviction is considered in the related appeal, Case No. 01-50681. No. 01-50671 -3-

type of amphetamine, the evidence was also sufficient to convict

Inman of possession of amphetamine.

Finally, Inman contends that the district court erred by

not making particularized findings following Inman’s objection to

the presentence report (“PSR”) on drug quantity. Inman did not

object to the district court’s failure to make particularized

findings on drug quantity at sentencing, and therefore this issue

is reviewed for plain error. See United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc). The district court did

not err in adopting the findings in the PSR and thereby making

implicit findings as to drug quantity; the findings in the PSR are

clear and Inman offered no evidence to rebut the reliability of the

information relied on by the probation officer. See United States

v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994); see also United

States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996) (“The defendant

bears the burden of demonstrating that information the district

court relied on in sentencing is materially untrue.”) (internal

quotation and citation omitted). Moreover, even if, as Inman

contends, the district court erred by not making findings as to

whether the offense level should be 18 (as suggested by the

Government at sentencing) or 20 (as set forth in the PSR adopted by

the court), Inman’s substantial rights were not affected. Inman

was sentenced under the multi-count adjustment set forth at

U.S.S.G. § 3D1.4 and his sentence would have been the same

regardless whether the grouped drug counts were assigned an offense No. 01-50671 -4-

level of 18 or 20. See U.S.S.G. § 3D1.4. Inman does not reassert

the contention made in his PSR objections that the offense level

should have been 14; accordingly, that argument is abandoned. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

AFFIRMED.