* 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opinion should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

April 26, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11117

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES ERIC DeLONG,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:03-CR-10-ALL

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

Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Charles Eric DeLong appeals his conviction and sentence

following his guilty plea to possession of a firearm in furtherance

of a drug trafficking offense and to possession with the intent to

distribute methamphetamine. DeLong argues that the district court

erred in denying his motion to suppress evidence found after

officers executed an investigative stop of a vehicle in which he

was a passenger. He argues that the officers who stopped the

vehicle did not have a reasonable suspicion that a crime had been
2

or was about to be committed. We review the legality of an

investigative stop de novo. See United States v. Jaquez, 421 F.3d

338, 341 (5th Cir. 2005). 

Law enforcement officers may initiate an investigative stop

if they have reasonable suspicion that criminal activity is afoot.

Goodson v. City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.

2000). The fact that a stop is made in a high crime area alone

does not supply reasonable suspicion. See Illinois v. Wardlow, 528

U.S. 119, 124 (2000). Rather, reasonable suspicion must be

supported by particular and articulable facts, which, taken

together with rational inferences from those facts, reasonably

warrant an intrusion. Goodson, 202 F.3d at 736. The police

officers’ testimony that the cemetery had previously been the scene

of vandalism, coupled with the testimony that the vehicles entered

the cemetery in tandem late at night and then backed out when the

patrol car passed, supports the district court’s determination that

there was reasonable suspicion warranting the stop. The testimony

that the cemetery was in an isolated area and that building

materials were left unattended further supports the court’s

determination of a reasonable suspicion. We thus hold that the

district court did not err in denying the motion to suppress the

evidence seized as a result of the search. See Jaquez, 421 F.3d at

341.

DeLong next argues that the district court committed

reversible error when it sentenced him under the mandatory
3

guidelines system held unconstitutional in United States v. Booker,

543 U.S. 220 (2005), and that the error was not harmless beyond a

reasonable doubt. He also argues that his sentence runs afoul of

Booker and the Sixth Amendment because it was based on facts not

admitted by him. 

DeLong entered his guilty plea pursuant to a plea agreement.

Although the plea agreement preserved DeLong’s right to appeal the

district court’s denial of his motion to suppress, DeLong waived

the right to appeal his sentence except in the case of a sentence

exceeding the statutory maximum, a sentence representing an upward

departure from the Sentencing Guidelines range, or an arithmetic

error at sentencing. The Government seeks to enforce the waiver.

DeLong argues that because Booker was not the law at the time of

his sentencing, he could not have executed a valid waiver of his

rights under Booker.

“The language in [an] appellate waiver must be afforded its

plain meaning in accord with the intent of the parties at the time

the plea agreement was executed.” United States v. Cortez, 413

F.3d 502, 503 (5th Cir.), cert. denied, 126 S. Ct. 502 (2005).

Thus, “an otherwise valid appeal waiver is not rendered invalid, or

inapplicable to an appeal seeking to raise a Booker or Fanfan issue

(whether or not that issue would have substantive merit), merely

because the waiver was made before Booker.” United States v.

Burns, 433 F.3d 442, 450 (5th Cir. 2005). Because DeLong executed

a valid waiver of his appellate rights with respect to his
4

challenge to his sentence, we dismiss this portion of his appeal.

See id. at 451.

AFFIRMED IN PART; DISMISSED IN PART.