* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be published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 5 TH C IR . 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 Moti on 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

contends the district court erred in denying his Moti on 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”) of the

Groesbeck Police Department observed a vehicle parked on the shoulder of the 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 immediat ely. As Officer Henson exited his car, the driver

placed both of his hands outside t he 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 Henson questioned Washington about the expired registration. Washington explained

that he recently purchased the vehicle and that the dealer's tag was in 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 Was hingt o n 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 h i m 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 Henso n did not request written

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

Henson conducted a brief search of the vehicle and found two baggies that 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

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

$3,000.

Washington filed a Moti on 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 Moti on to Suppress, finding that Washington was not illegally detained, and

further, that he consented to the search of the 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's factual findings for clear error and its conclusions regarding the

constitutionality of a warrantless search de novo. S ee 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 d e

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 limit ed seizure that closely resembles an in vestigative detenti on.” U nited

States v. Shabazz

, 993 F.2d 431, 435 (5th Cir. 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). S ee Pennsylvania

v. Mimms

, 434 U.S. 106 (1977) (per curiam); United States v. Kelley

, 981 F.2d 1464 (5th Ci r.

1993).

In Terry

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

without probable cause. The T erry Court stated that where t here 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 “m

ust 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 was justified 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 init ial stop of the vehicle for exp ired tags was im proper. 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 Wash ingt on committed the crime of

operating a vehicle with an expired license plate. S ee 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 o riginal

purpo se and t hus violated the second part of the T erry inquiry. The facts available to Officer

He nso n, 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's registration had expired. When Officer Henson stopped

Washington's vehicle, Washington stuck his hands through the window without the Officer's request

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

explanatio n abo ut 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

c i rcumstances 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 of the init ial

detention.

B. Consent

The voluntariness of the consent is determined from the totality of the circ umstances

surrounding the search. S ee 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 tha t no incriminating evidence will be found. S ee

United States v. Olivier-Becerril

, 861 F.2d 424, 426 (5th Cir. 1988) (citations omitted). “[N]o single

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

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

that Washington's consent was voluntary. Officer Henson asked Washingt o n 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 points for prior convictions. A defendant

earns three (3) points for a "prior sentence of imprison ment " 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 te n (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

jail sentence. 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

argues that 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 term rather than probation, poor defendants receive a higher criminal history score

– two points

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

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

a different sentencing 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 o ffense level of

t hirty-one (31), a criminal history category of V results in a sentencing range of 168-2 10 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 a l lege 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 protecti on 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 protecti on challenge if this Court finds the scheme rationally related to a legitimate government1 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. Gallow ay

, 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

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

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

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

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

generally

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

restraint, and the limit

ed likelihood of rehabilitation). Section 4A1.1, as applied, did not violate

Washington's right to equal protection.

IV. CONCLUSION

Accordingly, we AFFIRM. 1

2