## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3931

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Timothy L. Morris, also known as * Scott A. McMaster, * [UNPUBLISHED] * Appellant. *

___________ Submitted: June 2, 1998 Filed: June 5, 1998

___________ Before BOWMAN, Chief Judge, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM. During a traffic stop, Elk Point, South Dakota polic e sergeant Curt Muller found controll ed substances in the car Timothy L. Morris was driving. Morris was late r charged with two counts of possessing methamphetamin e and amphetamine with intent to distribute, i n violation of 21 U.S.C. § 841(a)(1) (1994). Morris moved to suppress evidence obtained from his vehicle. Following a suppression hearing, the DistrictThe Honorable Lawrence L. Piersol, United States District Judge for th e District 1 of South Dakota. The Honorable John B. Jones, United States District Judge for the District of 2 South Dakota. -2- Cou rt concluded Muller had had a reasonable basis to stop Morris’s vehicle an d

1 probabl e cause to search the vehicle; the Court thus denied the motion. A jury found Morris guilty of both counts, and the District Court later sentenced Morr is to serve 240 2 months of imprisonm

ent and 10 years of supervised release, and to pay a $3,000 fine. Morris now appeals, challenging his convictions and sentence. We affirm.

Morris first challenges the District Court’s refusal to suppress the evidenc e seized from his vehicle. We review de novo the denia l of a motion to suppress, but we review findings of historical fact only for clear error. See United States v. Weinbender , 109 F.3d 1327, 1329 (8th Cir. 1997). At the suppression hearing, Muller testified that
on the even ing in question, he saw Morris driving a 1976 Lincoln with an attache d trailer

. Muller observed that the trailer’s taillights were “flickering on and off,” an d that the trailer’ s license plates had expired. After Muller stopped the Lincoln, Morris was unable to produce a driver’s license or vehicle registration, and Muller smelled “an odor of bu rnt marijuana” coming from the vehicle; Muller later noticed the smell o f burnt marijuana on Morris when they entered the patrol vehicle. Based upon Muller’s testimony, which the District Court credited, see United States v. Moss , 138 F.3d 742, 745 (8th Cir. 1998), we conclude the District Court did not err in denying Muller & s motion to suppress, see United States v. Maza , 93 F.3d 1390, 1396 (8th Cir. 1996 ) (noting traffic violation provides probable cause for traffic stop), cert. denied , 117 S. Ct. 1 008, and cert. denied , 117 S. Ct. 1345 (1997); United States v. Caves , 890 F.2d 87, 89-91 (8th Cir. 1989) (concluding odor of marijuana on br eath and person provided probable cause for police to search vehicle without warrant).-3-

Morris also argues that an informal grant of immunity barred federal prosecution, bec ause a state assistant attorney general promised not to turn the matter over to th e federal government in return for Mo rris’s cooperation. As there is no evidence anyone had authori zation to grant Morris federal immunity, this argument lacks merit. Se e Hendrix v. Norris , 81 F.3d 805, 807 (8th Cir. 1996) (noting that “ # state prosecutor s cannot bind federal

prosecutors without the latter’s knowledge and consent’” (quoting United States v. Fuzer , 18 F.3d 517, 520 (7th Cir. 1994)).

Nex t, Morris challenges the jury’s finding that controlled substances wer e involved. During the trial, two forensic chemists testified for the government that the substances seized from Morris’s car were marijuana, amphetamine, an d methamphetamine. Based upon their testimony, we believe a rea sonable jury could find the recovered substances were controlled substances, and we conclude that the District Cour t did not err by denying the motion to set aside the jury’s verdict. See Unite d States v. Baker , 98 F.3d 330, 338 (8th Cir. 1996), cert. denied , 117 S. Ct. 1456 (1997); Nicks v. Missouri , 67 F.3d 699, 704 (8th Cir. 1995).
We also reject M orris’s argument that the District Court erred by enhancing his sente nce under 21 U.S.C. § 841(b)(1)(A) (1994), which requires a 20-year minimu m sent ence when, as relevant here, the offense involves 100 or more grams o f
m e thamphetamine and the defendant has a prior felony drug conviction. Specifically, Morris takes issue with the Court’s reliance on his prior felony drug conviction, because he maintains that it did not result from an indictment. In support, Morr is cites 21 U.S.C. § 851(a) (1994), which prohi bits the government from filing an information to enhance a defendant’s sentence if the increased punishment i s for a term in excess of three years unless a defendant “waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.” We have previously held , however, that this requirement concerning waiver of indictment or prosecution b y indictment applies to the instant offense, not a prior offense. See United States v

. Trevino-Rodriguez , 994 F.2d 533, 536 (8th Cir. 1993). Although Morris-4-

asserts an ineffective-assistance-of-counsel claim, we decline to address this claim as it should be raised in a 28 U.S.C. § 2255 (1994) action. See United States v. Brandt , 113 F.3d 127, 128 (8th Cir. 1997). After carefully reviewing Morris’s remainin g arguments, some of whi ch are raised for the first time on appeal, we conclude they are meritless. Accordingly, we affirm the judgment of the District Court.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.