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this opinion should not be published and is not precedent except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

November 17, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41693

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRIGIDO ORTIZ-GONZALEZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:03-CR-181-1

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

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Brigido Ortiz-Gonzalez appeals following his conditional

guilty plea to felon in possession of a firearm (count one), in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); possession of

an unregistered firearm (count two), in violation of 26 U.S.C. 

§§ 5841, 5861(d) and 5871; illegal re-entry into the United

States after deportation (count three), in violation of 8 U.S.C.

§ 1326(a) and (b); and illegal alien in possession of a firearm

(count four), in violation of 18 U.S.C. §§ 922(g)(5)(A) and
No. 03-41693

-2-

924(a)(2). Ortiz-Gonzalez argues that the district court

erroneously denied his motion to suppress evidence.

In reviewing the denial of a motion to suppress evidence

obtained pursuant to a search warrant, we determine: (1) whether

the good-faith exception to the exclusionary rule applies; and

(2) if not, whether probable cause supported the warrant. United

States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). OrtizGonzalez argues that the good-faith exception does not apply

because the affidavit on which the search warrant was based was

so lacking in indicia of probable cause that no reasonable

officer could rely on the warrant in good faith. The affidavit

was based on the personal observation by a confidential

informant, who had previously provided reliable, credible

information leading to the seizure of narcotics and the arrest of

narcotics traffickers. The informant had been in OrtizGonzalez's residence and observed marijuana. A common sense

reading of the affidavit supports the conclusion that the

informant had been in the residence within the preceding 72

hours. We conclude that the officers relied in good faith on the

warrant and that the district court did not err in denying the

suppression motion. See United States v. Satterwhite, 980 F.2d

317, 320 (5th Cir. 1992); United States v. McKnight, 953 F.2d 898

(5th Cir. 1992).

Ortiz-Gonzalez also argues that his convictions and

sentences for felon in possession of a firearm and illegal alien
No. 03-41693

-3-

in possession of a firearm, which were based on the same weapon,

are multiplicitous and violate double jeopardy. The Government

concedes that our decision in United States v. Munoz-Romo, 989

F.2d 757, 759-60 (5th Cir. 1993), is controlling. Ortiz-Gonzalez

is correct that his convictions on counts one and four violate

his rights against double jeopardy. See id. On remand the

district court therefore must vacate the conviction on either

count one or count four and resentence Ortiz-Gonzalez. Id.

Ortiz-Gonzalez similarly argues that his convictions on

counts three and four are also multiplicitous. We decline to

address this issue as the district court's action on remand may

render the issue moot. See United States v. Marroquin, 885 F.2d

1240, 1245 (5th Cir. 1989).

AFFIRMED in part, VACATED in part, and REMANDED.