IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-50050 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID WINSTON LOVING
Defendant-Appellant. _________________________________________________________________
Appeal from the United States District Court for the Western District of Texas USDC No. 5:99-CR-161-ALL _________________________________________________________________ April 27, 2001
Before JOLLY, MAGILL,* and BENAVIDES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:**
David Winston Loving was convicted for knowingly possessing
firearms after being convicted of a felony, in violation of 18
U.S.C. § 922 (g)(1), and for possessing firearms knowing they were
stolen, in violation of 18 U.S.C. § 922(j). He now appeals his
conviction, claiming that (1) the district court erred in denying
his motion to suppress evidence, (2) he was deprived of his Sixth
* Circuit Judge of the Eighth Circuit, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Amendment right to counsel of his choosing, and (3) the district
court abused its discretion in admitting evidence of other possible
wrongdoing. He also challenges his sentence, arguing that the
enhancement of his sentence was a violation of due process because
of the failure to include his prior felonies in the indictment. He
further contends that his sentence on the second count exceeds the
statutory maximum. Because we conclude that there are no
reversible errors, we affirm both Loving’s conviction and sentence.
I
A
On April 8, 1999, David Winston Loving, a convicted felon, was
arrested in Seguin, Texas after police found three firearms in the
bed of his pick-up truck. Loving was parked at the Stor Mor rental
units, in a pick-up truck with an attached U-Haul trailer. At the
approach of police officer Juan San Miguel, who decided to
investigate because of recent burglaries at the storage unit,
Loving drove away. Officer San Miguel followed Loving, and pulled
him over when he failed to signal a right turn.
When questioned about his presence at the storage units,
Loving stated that he had stopped at the Dairy Queen across the
street for coffee. He claimed that he had parked at the rental
units because the truck and trailer were difficult to maneuver in
the Dairy Queen parking lot. Loving also told the officer that he
had rented the U-Haul trailer to help his niece move to Austin, and
voluntarily offered to let the officer search the U-Haul trailer,
2 which was empty except for some blankets. The officer issued
Loving a warning ticket for the traffic violation.
After giving Loving the citation, the officer requested and
obtained Loving’s consent to search the cab of the truck. In the
trunk’s cab, the officer found a police scanner tuned to the Seguin
Police Department’s frequency, and several locks and keys. He also
found Loving’s wallet, which contained his parole identification
card, and, in a tool organizer behind the truck’s seat, another
wallet containing credit cards and identification cards in other
people’s names. When questioned about his parole card, Loving
admitted to the officer that he had served time in prison for
robbery and murder. This information was also provided by the
police dispatch from the computer check on Loving’s license. As
other officers arrived at the scene, Officer San Miguel continued
to search the cab, finding a VCR and tool set. In the chrome tool
box in the back of the truck, the officers found a pair of bolt
cutters.
At that point, Officer San Miguel and Officer Juan Garcia
returned to the storage units and checked them for broken or cut
locks. They also attempted to open the locks on the units using
the keys found in Loving’s truck. Finding no visible signs of a
break-in, the officers returned to Loving’s truck and searched the
bed of the truck, which was covered by a tarp. In the bed of the
truck, along with a microwave oven, a large trash bag with
miscellaneous items, and a box of ceramics, the officers found two
3 shotguns and a rifle underneath the chrome tool box. Loving was
then read his Miranda warnings and arrested for being a felon in
possession of a firearm. When questioned about the guns after
being read his Miranda warnings, Loving said that he had purchased
the guns for his sons. At trial, Loving’s wife testified that she
had purchased the guns from a trucker on the side of the road.
B
A two count superseding indictment charged Loving with (1)
knowingly possessing firearms after being convicted of a felony, in
violation of 18 U.S.C.§ 922(g)(1), and (2) possessing firearms
knowing that they were stolen, in violation of 18 U.S.C. § 922(j).
The government filed a “Notice of Enhanced Penalty,” alleging that
Loving was subject to a minimum sentence of fifteen years in prison
for Count One under the Armed Career Criminal Act, 18 U.S.C. §
924(e)(1), because he had at least three previous convictions for
violent felonies or serious drug offenses.
Loving filed a motion to suppress the evidence found in the
truck as evidence obtained in violation of the Fourth Amendment,
which the district court denied after a hearing. Immediately
preceding the commencement of the trial, after discussions
concerning plea bargaining, Loving’s attorney filed a motion to
withdraw, stating that Loving had fired him. After hearing from
both the prosecutor and Loving, the district court denied the
motion.
The case proceeded immediately to trial, with Loving
4 stipulating that he was a convicted felon. The jury found him
guilty of both knowingly possessing firearms and knowingly
possessing stolen firearms. Using the Armed Career Criminal Act,
18 U.S.C. § 924(e)(1), to enhance Count One of the sentence, the
district court sentenced Loving to concurrent sentences of 220
months’ imprisonment on each count of the indictment, grouping the
offenses together for the purpose of calculating the appropriate
sentencing range.
II
Loving first challenges the district court’s denial of his
motion to suppress the evidence found during the search of his
truck. Loving argues that the officer’s request to search the cab
of the truck was unlawful because the search was beyond the scope
of the traffic stop. He also claims that the officer had neither
consent nor probable cause to search the bed of his truck.
We review questions of law contained in a ruling on a motion
to suppress de novo, and review the district court’s factual
findings for clear error. See United States v. Jordan, 232 F.3d
447, 448 (5th Cir. 2000). The evidence is viewed in the light most
favorable to the party that prevailed in the district court, in
this case, the government. Id.
Loving does not dispute that his traffic violation justified
the initial stop. He contends, however, that the officer’s request
to search the cab of his truck exceeded the reasonable scope of the
5 stop, because the request was unrelated to the traffic stop and
because it served to detain Loving after the reason for the stop
had ceased to exist. Whether the search was reasonable in scope is
a question that relates to detention, not questioning. United
States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993). We have held
that questioning that does not extend the duration of the stop,
even if it is unrelated to the purpose of the stop, does not
violate the Fourth Amendment. Id. at 437. Thus, the fact that the
request to search Loving’s truck was unrelated to the traffic
violation does not establish a Fourth Amendment violation.
Loving’s argument that he was detained after the reason for
the stop had ceased to exist is also meritless. He contends that
the officer’s request to search the truck’s cab extended the
duration of the detainment beyond what was legally permissible for
a traffic stop, because the officer had already issued a citation
for the traffic violation. This contention, however, ignores the
fact that the officer had returned Loving’s license and
registration at the time of the request. The officer did not
attempt to delay or detain Loving in order to gain time to make a
lawful search of his vehicle. Unlike the defendant in United
States v. Dortch, 199 F.3d at 198, whose license and car rental
papers were kept after the computer check was over, Loving was free
to leave after the officer issued him the citation. Instead, he
voluntarily consented to the search of his cab. Thus, the
6 officer’s search of the truck’s cab did not violate the Fourth
Amendment.
Loving also argues that the officers lacked either consent or
probable cause to search the bed of his truck, where the stolen
guns were found. Loving contends that any consent that he gave was
limited to the cab of the truck. This may be true, but even
without consent, warrantless searches of automobiles are permitted
under the Fourth Amendment if the officers have probable cause to
believe that the vehicle contained contraband or other evidence of
a crime. United States v. McSween, 53 F.3d 684, 686 (5th Cir.
1995). Whether an officer has probable cause to search a vehicle
will depend on the totality of the circumstances, viewed in the
light of the knowledge and observations made by the officer
involved in the warrantless search. Id.
The officer here had probable cause to search the bed of the
truck after he had completed his search of the cab of the truck.
Officer San Miguel’s attention was first drawn to Loving when he
saw the truck parked between storage units that had recently been
burglarized. Loving then drove off when the officer approached.
The search of the truck’s cab yielded a police scanner tuned to the
frequency of the local police department; several locks and keys
that, in Officer San Miguel’s experience, could be used to steal
items from storage units; and a wallet containing over eighteen
credit and identification cards in several different names. The
7 cab also contained a VCR and a tool set, which the officer thought
might be stolen property. These facts give rise to probable cause
to search the rest of the vehicle. The officer’s discovery of the
bolt cutters in the truck’s tool box also support a finding of
probable cause.
Loving contends that probable cause dissipated when police
returned to the storage facility and found no evidence of a break-
in. Despite the officers’ failure to find evidence of tampering at
the storage unit, the totality of the circumstances suggested that
there was a fair probability that contraband would be found in
Loving’s truck. Although there was no explicit evidence that
Loving had broken into any of the storage units, the bolt cutter
and the locks suggested that Loving could have covered up the signs
of any burglary by relocking what he entered. Thus, even though a
search of the storage units did not yield any evidence of
tampering, the officers nevertheless had probable cause to search
the bed of the truck based on the earlier lawful discoveries.
Thus, the district court did not err in denying Loving’s motion to
suppress the evidence gathered during the search of the truck.
III
Loving next argues that he was denied his Sixth Amendment
right to counsel of his choosing, because the district court
refused to allow Loving’s attorney to withdraw after Loving fired
him. Loving also contends that the district court’s failure to
8 grant him a continuance to obtain new counsel was a denial of due
process.
On the morning the trial was scheduled to begin, Loving
addressed the court with questions concerning his possible sentence
if he were to plead guilty. The district court explained that it
could not guarantee his sentence, and described the federal plea
bargain process. After a short recess, Loving’s attorney filed a
motion to withdraw, stating that Loving had fired him in the
interim. When questioned, Loving complained that he was confused
about plea bargaining and that he could not get a clear
understanding about the plea bargain offer from his attorney.
Loving then requested that he “be allowed time to either interpret
things better or have some sort of better understanding.” His
comments suggest that he was attempting to weigh the plea bargain
offer against the possibility of his success at trial.1 The
district court denied the motion to withdraw off the record, and
the case proceeded to trial. Later on during the trial, the
1 After discussing the plea bargain with the court, Loving stated And I thought I had pretty much on the right track here. There, you know – so, since I paid this guy here, I don’t understand what he’s saying. I’m asking that I be allowed time to either interpret things a little bit better or have some sort of better understanding. His success rate at one time was 85 percent at trial. I agree that the things might change, but it shouldn’t change that drastic where he lost faith in winning a trial too. I think I can do better with something else like that.
9 district court denied the motion to withdraw on the record, noting
that “the reason is that we’re ready to go to trial. It’s too
late.”
Loving received effective representation through trial and
sentencing; the Sixth Amendment does not guarantee him the absolute
right to the counsel of his choice. Because granting the motion to
withdraw on the morning the trial was scheduled to begin would have
resulted in significant delays, the district court did not abuse
its discretion in denying the motion to withdraw. See United
States v. Wild, 92 F.3d 304, 306 (5th Cir. 1996) (reviewing denial
of motion to withdraw for abuse of discretion); United States v.
Magee, 741 F.2d 93, 94 (5th Cir. 1984) (noting that it is within
the judge’s discretion to deny a change of counsel on the morning
of trial).
There was also no abuse of discretion in the district court’s
failure to grant Loving a continuance to find alternative counsel.
See United States v. Hughey, 147 F.3d 423, 431-32 (5th Cir. 1998).
Although Loving’s attorney filed a motion to withdraw after Loving
fired him, Loving never specifically requested a continuance to
find new counsel. He did not even indicate that he wanted to seek
new counsel. Loving’s previously retained counsel was prepared to
proceed to trial, and the trial was scheduled to begin immediately.
Beyond expressing that his attorney had failed to adequately
clarify the plea bargaining process, Loving did not articulate why
10 he chose to fire his attorney. These factors suggest that the
district court’s failure to granting a continuance to allow Loving
time to find new counsel was neither arbitrary nor unreasonable,
and we will therefore not disturb it on appeal.
IV
Over Loving’s objections, the district court allowed the
government to introduce into evidence the items found in the cab
and bed of Loving’s truck. These items included a microwave, a
VCR, a tool set, laundry tags, clothing, bolt cutters, books, and
credit card and identification cards with other people’s names on
them.2 Loving argues that introduction of these items was improper
under Federal Rule of Evidence 404(b) as evidence of other crimes,
wrongs, or acts used to prove character. He contends that the
government introduced these items solely to suggest to the jury
that Loving had stolen them, and that admission of the items was
highly prejudicial and deprived him of a fair trial.
We review the district court’s evidentiary rulings for abuse
of discretion. United States v. DeLeon, 170 F.3d 494, 497 (5th
Cir. 1999). Our review is necessarily heightened in criminal
cases. United States v. Richards, 204 F.3d 177, 199 (5th Cir.
2000). Even if the district court abused its discretion, however,
2 At the district court’s request, Loving’s attorney objected to these items as a group, before the start of the trial, so that the trial would not be interrupted by objections to each individual object.
11 the erroneous admission of evidence only requires reversal if the
evidence had a "substantial impact" on the verdict. Id. at 203
(using the harmless error doctrine when reviewing admissions under
404(b)).
Loving was charged with being a felon in possession of a
firearm and with knowingly possessing stolen firearms. The
government argues that the items taken from the truck are intrinsic
evidence, rather than extrinsic evidence subject to Rule 404(b),
because their presence in the truck is inextricably intertwined
with Loving’s possession of the firearms. Some of the evidence
that was introduced-–laundry tags with the name of Eric Langerud,
who testified that the guns had been stolen from his storage unit
and whose name was on one of the gun cases, and a newspaper from El
Campo dated just prior to when the guns were allegedly stolen from
a storage unit in El Campo-–is clearly intertwined with Loving’s
possession of the stolen firearms. At trial, Loving’s wife
testified that she bought the firearms from a trucker, on the side
of the road. Because the laundry tags and newspaper clearly relate
to the circumstances surrounding Loving’s possession of the
firearms and whether Loving was aware that they were stolen, these
objects are intrinsic evidence of the crime that do not fall under
Rule 404(b).
The other objects in the truck-–including the credit cards,
identification cards, VCR, microwave, and tool set-–arguably do not
12 specifically relate to Loving’s possession of the stolen firearms.
Thus, we will consider these items to be extrinsic evidence, which
are admissible only if the government can show that they are
relevant to an issue other than Loving’s character. The government
contends that the objects are relevant to prove Loving’s knowledge
that the firearms were stolen. When evidence involves an extrinsic
act, relevancy is determined by the similarity between the
extrinsic act and the charged offense. See Richards, 204 F.3d at
199. The evidence must be sufficient to permit a reasonable jury
to find that the defendant committed the extrinsic act. Id. Here,
although the government only introduced proof that one of the
items, an identification card,3 was stolen from a storage unit, the
total evidence introduced could permit a jury to find that Loving
possessed other stolen property. Because evidence that Loving
knowingly possessed stolen property on another occasion might help
to demonstrate that he was aware--contrary to his position at trial
that his wife had purchased the firearms--that he was in possession
of stolen firearms, this evidence is relevant to something other
than character. See United States v. Beechum, 582 F.2d 898, 912
n.15 (5th Cir. 1978) (noting that evidence of extrinsic evidence is
admissible when it tends to show that the defendant knowingly
committed a similar act on a prior occasion).
3 A witness for the government testified that this identification card was stolen from a storage facility in Florida.
13 The second part of the Rule 404(b) test requires us to
consider whether the evidence satisfies Federal Rule of Evidence
403, that is, whether the district court appropriately balanced the
prejudicial effect of the evidence with its probative value.
Because of the difficulty inherent in proving that Loving was aware
that the firearms were stolen, the extrinsic evidence of other
property possibly stolen from storage units is highly probative.
We think that the district court acted within its discretion by
finding that the evidence’s probative value was not substantially
outweighed by its potential for prejudice.
Furthermore, and in any event, the introduction of these
objects is not reversible error. A review of the entire record and
the evidence against Loving is fully convincing that the jury would
have returned the same verdicts of guilty against Loving even
without the prejudicial evidence.
V
Finally, Loving challenges his sentence. The challenge is on
two grounds: first, that the felony convictions used to enhance his
sentence under Count One had to be charged in the indictment as an
element of the offense and; second, that his sentence on Count Two
exceeded the statutory maximum. Because Loving did not raise these
objections to his sentence in the district court, his claims are
reviewed for plain error. United States v. Dabeit, 231 F.3d 979,
983 (5th Cir. 2000). To satisfy this standard, there must be an
14 error that is plain, clear or obvious, and the error must affect a
substantial right. Id. We should not exercise our discretion to
correct a forfeited error unless the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
Jones v. United States, 527 U.S. 323, 389 (1999) (internal
citations omitted).
Count One of the indictment charged Loving with being a
convicted felon who knowingly possessed firearms in violation of 18
U.S.C. § 922 (g)(1). The district court enhanced Loving’s sentence
under this count to 220 months’ imprisonment.4 The court did this
based on the Armed Career Criminal Act, 18 U.S.C. § 924(e), which
provides for greater penalties if gun possession occurred after a
defendant has three convictions for either serious drug offenses or
violent felonies. The Supreme Court’s recent decision in Apprendi
v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) held that
factors that increase the maximum penalty for a crime must be
alleged in the indictment and proved beyond a reasonable doubt.
Loving thus contends that his sentence under § 924(e) violates due
process because his three prior convictions were neither alleged
nor proved beyond a reasonable doubt.
However, in Almendarez-Torres v. United States, 523 U.S. 224
(1998), the Supreme Court found no violation of due process when
4 Section 922(g)(1) provides a maximum sentence of ten years’ imprisonment.
15 the defendant’s sentence (imposed under a plea bargain) was
enhanced based on prior convictions that were not alleged in the
indictment. The Court held that the convictions were sentencing
factors, not elements of the offense, and, therefore, did not need
to be specifically alleged in the indictment. The Supreme Court
declined to overrule this decision in Apprendi. See 120 S.Ct. at
2362 (“Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable
doubt.”) (emphasis added). Although Loving argues that the holding
of Almendarez-Torres is limited to its facts, and that his case is
distinguishable because he went to trial instead of pleading
guilty, this court is bound to follow Supreme Court precedent that
directly controls. See Dabeit, 231 F.3d at 984 (5th Cir. 2000).
Thus, in accordance with Almendarez-Torres, the district court did
not err in treating Loving’s prior convictions as sentencing
factors for the purpose of enhancing his sentence.
With respect to the second challenge to his sentence, on Count
Two of the indictment Loving was charged with knowing that the
firearms were stolen in violation of 18 U.S.C. § 922(j). Loving
was sentenced to 220 months’ imprisonment on that count. Loving is
right when he notes that the 220 months’ imprisonment exceeds the
statutory maximum of ten years, as provided in 18 U.S.C. §
924(a)(2). Although the sentencing guideline range of 188 to 235
16 months for this offense was appropriately calculated by grouping
Counts One and Two, where there are no enhancing sentencing factors
in the statute, the sentence on any offense cannot exceed the
maximum sentence that the statute provides. See U.S.S.G. §
5G1.1(a) (“Where the statutorily authorized maximum sentence is
less than the minimum of the applicable guideline range, the
statutorily authorized maximum sentence shall be the guideline
sentence.”). Thus, the district court’s sentence of 220 months’
imprisonment on Count Two was improper.
The imposition of a sentence which exceeds the statutory
maximum, as here, is plain error. See United States v. Sias, 227
F.3d 244, 246 (5th Cir. 2000). Under plain error review, however,
we may vacate the sentence and remand for resentencing only if the
error affects Loving’s substantial rights. In sentencing cases, we
generally find prejudice to substantial rights only if the alleged
error resulted in an increased sentence for the defendant. United
States v. Meshack, 225 F.3d 556, 577 (5th Cir. 2000). Loving’s
improper 220 month sentence on Count Two is to run concurrently
with his 220 month sentence on Count One, and therefore does not
increase the length of his sentence. Because this plain error does
not affect Loving’s substantial rights and his prison term will not
be affected, there is no need to vacate and remand for correction.
VI
For the reasons given above, the judgment of the district
17 court is
A F F I R M E D.