* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 16, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-50543

Summary Calendar

UNITED STATES OF AMERICA,

Plaint iffAppellee,

versus

XAVIER JONQUE WHEELER,

DefendantAppellant.

-------------------------------------------------------------- Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:03-CR-391-ALL

---------------------------------------------------------------

Before WIENER, STEWART and DENNIS, Circuit Judges.

PER CURIAM: *

Xavier Jonque Wheeler appeals his jury-conviction and sentence for attempting to

manufacture 50 grams or more of crack cocaine (crack), possessing with intent to distribute cocaine,

possessing a firearm in furtherance of a drug crime, and being a felon in possession of a firearm, in-2-

violation of 18 U.S.C. §§ 922, 924 and 21 U.S.C. §§ 841, 846. Wheeler argues that the district court

erred when it denied his motion to suppress evidence discovered following a traffic stop.

This court reviews findings, including credibility determinations, made by a district court on

a motion to suppr ess fo r clear error; review of the district court’s ultimate conclusions on Fourth

Amendment issues is de novo. U nited States v. Brigham

, 382 F.3d 500, 506 n.2 (5th Cir. 2004) (en

banc).

Wheeler was validly stopped by police for having outstanding traffic warrants. The fact that

an “officer does not have the state of mind which is hypothecated by the reasons which provide the

legal justification for the officer’s action does not invalid ate the acti on taken as l ong as the

circumstances, viewed objectivel y, just ify that action. . . . Subjective intentions play no role in

ordinary, probable-cause Fourth Amendment analysis.” O hio v. Robinette

, 519 U.S. 33, 38 (1996).

The initial stop does not present a Fourth Amendment violation.

Wheeler’s girlfriend, Shawn Gaston, consented to a search of her home. Wheeler argues that

Ga st on’s consent was coerced. Because the district court based its determination that Gaston’s

consent was voluntary on the oral testimony at the suppression hearing, we review for cl ear error

under a particularly stringent standard. United States v. Solis

, 299 F.3d 420, 436 (5th Cir. 2002).

We review six non-controlling factors to determine whether consent was voluntary: “(1) the

voluntariness of the defendant’s custodial status; (2) the presence of coercive police procedures; (3)

the extent and level of the defendant’s cooperati on with the police; (4) the defendant’s awareness of

his right to refuse to consent; (5) the defendant’s education and intelligence; and (6) the defendant’s

belief that no incriminating evidence will be found.” I d. The district court utilized these six factors-3-

to det ermine that Gaston’s consent was made voluntarily. Wheeler has provided no argument on

appeal that convinces us that the district court’s determination was clearly erroneous. S ee United

States v. Tompkins , 130 F.3d 117, 121-22 (5th Cir. 1997). Because Gaston voluntarily consented

to a search of her home, Wheeler cannot prevail on a Fourth Amendment challenge to that search.

United States v. Shelton

, 337 F.3d 529, 531-32 (5th Cir. 2003), cert. denied

, 540 U.S. 1229 (2004).

Regarding Wheeler’s safe that was in Ga s ton’s home, the district court determined that

Wheeler voluntarily consented to a search of the safe or, alternatively, the search thereof fell under

the inevitable discovery doctrine. Wheeler has failed to challenge the court’s holding based on

inevitable discovery. Accordingly, he has abandoned review of that issue. U nited States v.

Beaumont

, 972 F.2d 553, 563 (5th Cir. 1992). Wheeler has not demonstrated that the district court’s

denial of his motion to suppress the evidence was erroneous.

Wheeler also argues that his sentence was imposed in violat io n o f the Sixth Amendment,

under the rule announced in A pprendi v. New Jersey

, 530 U.S. 466 (2000) and Blakely v.

Washington , 124 S. Ct. 2531 (2004). The Supreme Court, in United States v. Booker

, 125 S. Ct.

738 (2005), reaffirmed Apprendi and Blakely

that “[a]ny fact (other than a prior conviction) which

is necessary to support a sentence exceeding the maximum authorized by the facts established by a

plea of guilty or a jury verdict must be admitted by the defendant or p roved to a j ury bey ond a

reasonable doubt.” 125 S. Ct. at 756. Wheeler preserved this argument in t he district court by

objecting based on Apprendi

. S ee United States v. Pineiro

,

___ F.3d

___, 2005 WL 1189713, *2

(5th Cir. May 20, 2005). Consequently, the Government bears the burden of establishing, beyond

a reasonable doubt, that the error was harmless. See id.-4-

The jury found Wheeler guilty of attempting to manu facture more than 50 gram s of crack

cocaine. The testimony from Wheeler’s trial established, and Wheeler admitted at sentencing, that

he possessed 439 grams of powder cocaine. However, Wheeler was sentenced based on at least 150

but less than 500 grams of crack cocaine. Consequently, Wheeler was sentenced based on facts

neither admitted by him nor found by a jury, in violation of Booker

. The Government has failed to

meet its burden of proving that th e error was harmless. Accordingly, Wheeler’s conviction is

AFFIRMED, but we VACATE Wheeler’s sent ence, and REMAND for resentencing in light of

Booker

.