# United States Court of Appeals **for the Fifth Circuit**

____________
No. 23-40562 Summary Calendar

____________ United States of America,
Plaintiff—Appellee ,

versus
Jonathan Lamar Simpson,
Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:21-CR-120-1

______________________________
Before Wiener, Ho, and Ramirez, Circuit Judges

. Per Curiam: * A jury convicted Jonathan Lamar Simpson of possession of a firearm and ammunition by a convicted felon. The district court sentenced him to 120 months of imprisonment, which wa s a departure or, alternatively, an upward variance from the guidelines rang e. On appeal, Si mpson argues that (1) his trial counsel was ineffective, (2 ) the district court erroneously denied

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED August 9, 2024 Lyle W. Cayce Clerk Case: 23-40562 Document: 96-1 Page: 1 Date Filed: 08/09/2024No. 23-40562

2 his motion to suppress evidence, and (3 ) his sentence is unreasonable. The record is not sufficiently developed to allow us to make a fair evaluation of Simpson’s claims of ineffect ive assistance of counsel; we therefore decline to consider the claims without prejudice to collateral review. See United States v. Isgar , 739 F.3d 829, 841 (5th Cir. 2014). Regarding the motion to suppress, Simpson argues that the arresting officers lacked probable cause to sear ch the vehicle he had just parked. Assuming without deciding that trial counsel did not waive this issue, “[we] review[] factual findings for clear erro r and the ultimate constitutionality of law enforcement action de novo.” United States v. Robinson , 741 F.3d 588, 594 (5th Cir. 2014). We view the evid ence in the light most favorable to the prevailing party, and “the clearly erroneous standard is particularly strong” where the district court’s ruling is based on live oral testimony. United States v. Gibbs , 421 F.3d 352, 357 (5th Cir. 2 005) (internal quotation marks and citation omitted). We will uphold a di strict court’s ruling on a motion to suppress “if there is any reasonable view of the evidence to support it.” United States v. Massi , 761 F.3d 512, 520 (5th Cir. 2014) (internal quotation marks and citation omitted). Under the “automobile exception,” if law enforcement officials have probable cause to believe that a vehi cle contains contraband, a warrantless search is permitted. United States v. Fields , 456 F.3d 519, 523 (5th Cir. 2006). Probable cause is determined by examin ing the totality of the circumstances. Id . A showing of probable cause requires only a “fair probability” on which a “reasonable and prudent” person wo uld believe that contraband or evidence of a crime is present. Florida v. Harris , 568 U.S. 237, 243-44 (2013) (internal quotation marks, brackets, an d citations omitted; quotes at 244). Contrary to Simpson’s contention , the district court accurately characterized an officer’s testimony th at he detected the odor of marijuana Case: 23-40562 Document: 96-1 Page: 2 Date Filed: 08/09/2024No. 23-40562

3 coming from Simpson’s person when he opened the door to the vehicle and brought Simpson to the grou nd. Moreover, the district court did not clearly err in determining that the officer’s testimony was credible. See Gibbs , 421 F.3d at 357. Further, Simpson fails to show error in the district court’s determination that the officers’ kn owledge of the facts—many of which Simpson does not address in his brief—in their totality supplied the requisite probable cause. See Fields , 456 F.3d at 523. As for Simpson’s challenge to his sentence, the record does not support his assertion that the district court mistakenly believed that an amendment to the sentencing guidelines, had it been effective at the time of his sentencing, would not apply to him. Moreover, the district court was not required to apply the guidelines amen dment prior to its effective date. See United States v. Rodarte-Vasquez , 488 F.3d 316, 322 (5th Cir. 2007). Simpson fails to show that the district court miscalculated his guidelines range or otherwise committed a significant procedural error. See Gall v. United States , 552 U.S. 38, 51 (2007). Simpson also generally argues that his guidelines range adequately accounted for the sent encing factors and that the evidence failed to support the district court’ s sentence as an upward variance. However, a “district court is free to conclude that th e applicable [g]uidelines range gives too much or too little weig ht to one or more factors, and may adjust the sentence accordingly.” United States v. Lopez-Velasquez , 526 F.3d 804, 807 (5th Cir. 2008) (internal qu otation marks and citation omitted). Simpson’s conclusory arguments do not demonstrate that the district court failed to consider a factor that should have received significant weight, gave significant weight to an improper fact or, or made a clear error of judgment in balancing the sentencing factors. See United States v. Fraga , 704 F.3d 432, 440 (5th Cir. 2013).

AFFIRMED

. Case: 23-40562 Document: 96-1 Page: 3 Date Filed: 08/09/2024