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United States v. McDaniel, 00-30360 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 00-30360 Visitors: 2
Filed: Nov. 09, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-30277 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GREGORY DARNELL DOTSON, Defendant-Appellant. CONSOLIDATED WITH No. 00-30360 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JEFFERY BERNARD MCDANIEL, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Louisiana USDC No. 99-CR-30017-8 - November 9, 2000 Before SMITH, BENAVIDES, and DENNIS, Circuit Judges. P
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                            No. 00-30277
                          Summary Calendar


UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

GREGORY DARNELL DOTSON,

                                          Defendant-Appellant.


                          CONSOLIDATED WITH
                             No. 00-30360

UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,

versus

JEFFERY BERNARD MCDANIEL,

                                         Defendant-Appellant.
                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 99-CR-30017-8
                       --------------------
                         November 9, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*




     *
        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that this opinion should not be published and is not precedent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. 00-30277 c/w
                              00-30360
                                 -2-

     Gregory Darnell Dotson and Jeffery Bernard McDaniel appeal

from the sentences imposed after they pleaded guilty to

possession of cocaine base with intent to distribute.1

     Dotson argues that the district court erred in determining

that a stop of his vehicle was justified by a violation of the

traffic laws.   Having reviewed the record, we conclude that

Dotson has shown no reversible error in the district court’s

decision to credit a state trooper’s testimony over that of his

brother’s.    See United States v. Castro, 
166 F.3d 728
, 733 (5th

Cir.) (en banc), cert. denied, 
120 S. Ct. 78
(1999).

     Dotson argues that even if the traffic stop was valid, the

district court erred in upholding a trooper’s patdown search of

his person.   Because a reasonably prudent officer would--under

the totality of circumstances--have been concerned for his safety

or the safety of others, the patdown search was justified.     See

United States v. Michelletti, 
13 F.3d 838
, 840-41 (5th Cir. 1994)

(en banc).

     Dotson’s final argument is that the evidence obtained from a

search of an abandoned bag must be suppressed because it was the

product of an unlawful stop or an illegal patdown.   As we have

rejected Dotson’s arguments about the stop and the patdown, we

find this argument to be meritless as well.

     McDaniel contends that, at sentencing, he sufficiently

objected to the presentence report’s failure to award him a

     1
       Acting sua sponte, we concur with the district court in
determining that a letter written by McDaniel to the district
court could serve as an effective notice of appeal. See Cobb v.
Lewis, 
488 F.2d 41
, 45 (5th Cir. 1974).
                          No. 00-30277 c/w
                              00-30360
                                 -3-

downward adjustment pursuant to U.S.S.G. § 3B1.2.    Having

reviewed the transcript, however, we conclude that McDaniel made

no such objection.   See United States v. Bullard, 
13 F.3d 154
,

157-58 (5th Cir. 1994).   In addition, we perceive no plain error

that occurred regarding § 3B1.2.     See United States v. Fierro, 
38 F.3d 761
, 774 (5th Cir. 1994); United States v. Lujan-Sauceda,

187 F.3d 451
, 452 (5th Cir. 1999).

     McDaniel argues, in the alternative, that if sentencing

counsel did not sufficiently raise the § 3B1.2 issue, he provided

ineffective assistance of counsel.    We decline to reach this

argument on direct appeal.   See United States v. Kizzee, 
150 F.3d 497
, 503 (5th Cir. 1998).

     AFFIRMED.

Source:  CourtListener

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