*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this opinion should not be published and is not precedent except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.

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
2

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,
3

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
4

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
5

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
6

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
7

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
8

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 breakin. 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
1After 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

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
10

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
2At 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

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,
12

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
3A witness for the government testified that this

identification card was stolen from a storage facility in Florida.

13

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). 
14

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
4Section 922(g)(1) provides a maximum sentence of ten years’

imprisonment. 

15

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
16

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
17

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
18

court is 

A F F I R M E D.