* 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 R. 47.5, the Court has determined that this opinion should not be published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

FOR THE FIFTH CIRCUIT

Summary Calendar

No. 98-50644

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TIMOTHY JADON WASHINGTON

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

(W-97-CR-129-1)

April 20, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

After denying Appellant's Motion to Suppress, Appellant was convicted of unlawfully,

knowingly, and intentionally possessing at least 50 grams of cocaine base (crack cocaine) with intent

to distribute in violation of 21 U.S.C. § 841(a)(1) in a bench trial on stipulated facts. Appellant

contendsthe district court erred in denying his Motion to Suppress and that the sentencing guidelines,

as applied, violated his right to equal protection. We AFFIRM.

I. FACTS AND PROCEEDINGS

On November 2, 1997, at approximately 5:00 a.m., Officer Henson (“Officer Henson”) ofthe

Groesbeck Police Department observed a vehicle parked on the shoulder ofthe roadway. At the time

Officer Henson saw the vehicle, he was traveling south and the vehicle was facing north. As Officer

Henson passed the vehicle, it pulled onto the roadway and began traveling north. 

Officer Henson turned the police car around and began following the vehicle. Officer Henson

ran a routine check on the license plate and learned that the registration had expired. He stopped the
-2-

vehicle. 

The driver pulled his vehicle over immediately. As Officer Henson exited his car, the driver

placed both of his hands outside the driver's window without any request by the officer. Officer

Henson informed the driver he had been stopped because his registration had expired and requested

his driver's license. The driver produced his license which identified him as Timothy Jadon

Washington (“Washington”).

Officer HensonquestionedWashingtonabout the expired registration. Washington explained

that he recently purchased the vehicle and that the dealer'stag wasin the back window. When Officer

Henson observed that the tag was not in the back window, Washington replied that a temporary tag

was in the trunk. Washington opened the trunk with a latch inside the car and offered to retrieve the

license from the trunk.

Washington walked to the trunk and produced a temporary purchaser's tag. When Officer

Henson learned this tag had expired also, he called for backup. At this time, Officer Henson

questioned Washington about his destination. Washington stated he was on his way home to

Houston from Waco. Officer Henson testified that the location of Washington's vehicle was not on

a normal route from Waco to Houston. 

After questioning Washington, Officer Henson requested identification from the passenger.

The passenger produced a driver's license which identified him as Bevrick Briscoe (“Briscoe”).

Officer Henson questioned Briscoe about the vehicle's destination. Briscoe explained that the two

men were traveling to visit a friend in Mexia. 

Officer Henson asked Washington whether there was any illegal contraband in the vehicle.

Washington responded: “No, you can search it.” While Officer Henson did not request written

consent, the consent was witnessed by the backup officer, Javier Ybarra (“Officer Ybarra”). Officer

Henson conducted a briefsearch ofthe vehicle and found two baggiesthat appeared to contain crack

cocaine. Upon locating the baggies, Washington and Briscoe were placed under arrest for

investigation of possession of a controlled substance. Officer Henson then conducted a further search

ofthe vehicle, revealing two more baggies: one with crack cocaine and one containing approximately

$3,000.

Washington filed a Motion to Suppress the evidence, alleging the evidence was the result of

an illegal detention. Further, Washington contends he did not consent to the search of his car. The

District Court denied the Motion to Suppress, finding that Washingtonwas not illegallydetained, and

further, that he consented to the search ofthe vehicle. Under the United States Sentencing Guidelines
-3-

(“U.S.S.G.”), the judge imposed a 168-month period of incarceration.

II. STANDARD OF REVIEW

We review the district court'sfactualfindingsfor clear error and its conclusionsregarding the

constitutionality of a warrantlesssearch de novo. See United States v. Tompkins, 130 F.3d 117, 119-

20 (5th Cir. 1997). The voluntariness of consent to a warrantless search is a finding of fact reviewed

for clear error. See id. at 120. Constitutional challenges to sentencing guidelines are reviewed de

novo. See United States v. Guajardo, 950 F.2d 203, 206 (5th Cir. 1991). 

III. DISCUSSION

Washington raises three arguments on appeal. He argues that the district court erred by

failing to suppress the evidence found during the search of the automobile and that the district court

erred in finding voluntary consent. Further, Washington argues that Federal Sentencing Guideline

§4A1.1, as applied, violates his right to equal protection. We will address these issues in turn.

A. Length of Detention

The Fourth Amendment prohibits unreasonable searches and seizures. It is clear that “[a]

routine traffic stop is a limited seizure that closely resembles an investigative detention.” United

States v. Shabazz, 993 F.2d 431, 435 (5thCir. 1993) (citing Berkemer v. McCarty, 468 U.S. 420, 439

(1984)). Further, where an individual is stopped for violating a traffic law, the Supreme Court and

the Fifth Circuit have analyzed the case under Terry v. Ohio, 392 U.S. 1 (1968). See Pennsylvania

v. Mimms, 434 U.S. 106 (1977) (per curiam); United States v. Kelley, 981 F.2d 1464 (5th Cir.

1993).

In Terry, the Supreme Court promulgated the “reasonable suspicion” exception to a seizure

without probable cause. The Terry Court stated that where there is a reasonable and articulable

suspicion that a person has committed or is about to commit a crime, limited searches and seizures

are permissible under the Fourth Amendment. Thus, in justifying a limited stop of an automobile, an

officer “must be able to point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.” Id. at 21. To determine whether the

“reasonable suspicion” standard has been met, the Court created a two-part inquiry: (1) whether the

officer's action wasjustified at its inception and (2) whether it was reasonably related in scope to the

circumstances which justified the interference in the first place. See Terry, 392 U.S. at 19. 

The officer's actions, under the first part of the inquiry, were justified. Washington does not

argue, nor could he, that the initial stop of the vehicle for expired tags was improper. When the

license plate check showed Washington's registration expired, Officer Henson clearly had “specific
-4-

and articulable facts” to justify a reasonable suspicion that Washington committed the crime of

operating a vehicle with an expired license plate. See Tex. Transp. Code Ann. § 502.407 (West

1997) (effective Sept. 1, 1995).

Washington argues that the detention exceeded the reasonable scope of the stop's original

purpose and t hus violated the second part of the Terry inquiry. The facts available to Officer

Henson, however, constituted reasonable suspicion to justify further detention. Officer Henson

observed Washington's vehicle on the roadside before dawn. His suspicions were aroused when the

vehicle pulled onto the roadway as the officer's vehicle approached. Officer Henson ran a check on

the license plate and learned that the vehicle'sregistration had expired. When Officer Henson stopped

Washington's vehicle, Washington stuck his handsthrough the window without the Officer'srequest

or order. Washington could not readily locate his registration tags. Washington gave an unusual

explanation about his travel from Waco to Houston, the presence of Washington's vehicle in

Groesbeck was not on a normal route to Houston and, in fact, Washington was traveling in the

opposite direction. Finally, the passenger gave a conflicting story about their destination. Under the

circumstances of this case, the officer developed a reasonable suspicion, through specific and

articulable facts, that criminal activity was being committed, and thus, justified the scope ofthe initial

detention. 

B. Consent

The voluntariness of the consent is determined from the totality of the circumstances

surrounding the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Relevant factors

relating to voluntariness include: (1) the voluntariness of the defendant's custodial status; (2) the

presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with

the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education

and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. See

United States v. Olivier-Becerril, 861 F.2d 424, 426 (5thCir. 1988) (citations omitted). “[N]o single

factor is dispositive or controlling of the voluntariness issue.” Id. 

Applying these factorsto this case, the district court was not clearly erroneous in concluding

that Washington's consent was voluntary. Officer Henson asked Washington if there was any

contraband in his vehicle. Washington stated: “No, you can search it.” Officer Ybarra heard

Washington give consent to search the vehicle. The record does not reflect any evidence that Officers

Henson or Ybarra used any coercive procedures. Washington was fully cooperative with the Officer

throughout the entire stop and voluntarily consented to the search.
-5-

C. Application of Sentencing Guideline § 4A1.1

A criminal defendant accumulates criminal history pointsfor prior convictions. A defendant

earns three (3) points for a "prior sentence of imprisonment" exceeding 13 months, U.S.S.G. §

4A1.1(a); two (2) points for a "prior sentence of imprisonment" of at least 60 days but less than 13

months, U.S.S.G. § 4A1.1(b); and one (1) point for "each prior sentence not counted in (a) or (b)."

U.S.S.G. § 4A1.1(c). 

With respect to criminal history, Washington's prior offenses gave him ten (10) criminal

history points. Washington's criminal history points included two offenses where he accepted jail

terms rather than probation. In 1991, Washington pleaded guilty to assault and received a sixty-day

jailsentence. On the same day, Washington also pleaded guilty to unlawful carrying of a weapon and

received a second sixty-day sentence. Under U.S.S.G. § 4A1.1(b), Washington received four (4)

criminal history points for the two offenses. If Washington had accepted probation, he would have

received only two (2) points for the two offenses. See U.S.S.G. § 4A1.1(c). 

Washington disputes the computation of his criminal history points, contending that the

application of U.S.S.G. § 4A1.1 violated his right to equal protection. Specifically, Washington

arguesthat many poor defendants are unable to afford the costs associated with probation or they are

unable to post bond, and thus, have no choice but to plead guilty and take the jail term. By selecting

a jail termrather than probation, poor defendantsreceive a higher criminal history score – two points

under § 4A1.1(b) versus one point for probation under § 4A1.1(c). 

For Washington, the effect ofthis difference is a different criminal history category, and thus,

a differentsentencing range under the guidelines. In this case, Washington received a criminal history

category of V based on ten (10) criminal history points. Washington contends, that if he had been

able to afford probation or post bond for the two convictions in 1991, he would have had a criminal

history of IV based on eight (8) criminal history points. With Washington's base offense level of

thirty-one (31), a criminal history category of V results in a sentencing range of 168-210 months

while a criminal history category of IV results in a lower sentencing range of 151-188 months. The

judge sentenced Washington to a 168-month period of incarceration.

Washington does not allege that Congress adopted the sentencing provisions with a

discriminatory purpose or that poverty is a suspect class. Accordingly, the standard of review for

Washington's equal protection claim is the rational basis test. See United States v. Cherry, 50 F.3d

338, 343-44 (5th Cir. 1995); Guajardo, 950 F.2d at 207 n.7. “The penalty scheme will survive the

equal protection challenge ifthis Court findsthe scheme rationally related to a legitimate government
 

1

 The government also argues that Washington made a voluntary choice of jail time rather than

probation. Washington was not denied probation because he could not pay a fine or supervision fees.

-6-

purpose.” See Cherry, 50 F.3d at 344 (citing United States v. Galloway, 951 F.2d 64, 66 (5th Cir.

1992)). 

The sentencing scheme has a rational basis related to a number of penological goals.1 As the

introductory commentary to U.S.S.G. § 4A1.1 states, “[a] defendant with a record of prior criminal

behavior is more culpable t han a first offender and thus deserving of greater punishment.” The

sentencing scheme also serves to generally and specifically deter criminal conduct. Further, the

sentencing scheme protects the public from individuals who are likely to commit future crimes. See

generally, U.S.S.G. Ch. 4, Pt. A, intro. comment., at 4.1 (referencing retribution, deterrence,

restraint, and the limited likelihood of rehabilitation). Section 4A1.1, as applied, did not violate

Washington's right to equal protection. 

IV. CONCLUSION

1 Accordingly, we AFFIRM.

2