IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-51458

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

JESSE KYLE SKYBERG, also known as Jesse Skyberg, also known as Jesse 

K. Skyberg, also known as Jessie Kyle Skyberg, 

Defendant-Appellant 

Appeals from the United States District Court 

for the Western District of Texas 

USDC No. 5:15-CR-41-1 

Before KING, ELROD, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Jesse Kyle Skyberg appeals his guilty plea conviction for one count of 

possession with intent to distribute 50 grams or more of methamphetamine in 

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count One), one count of 

possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) 

and 924(a)(2) (Count Two), and one count of using, carrying, and possessing a 

 

* 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

Fif h Circuit

FILED

November 27, 2017

Lyle W. Cayce

Clerk

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No. 16-51458

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firearm in furtherance of a drug trafficking crime in violation of § 924(c) (Count 

Three). He contends that the district court erred in denying his motion to 

suppress evidence seized following the warrantless search of the vehicle he was 

driving at the time of his arrest for evading arrest or detention. 

When reviewing the denial of a motion to suppress, we review factual 

findings for clear error and the ultimate constitutionality of law enforcement’s 

action de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). In addition 

to deferring to the district court’s factual findings, we must view the evidence 

in the light most favorable to the prevailing party, which in this case is the 

Government. See United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005). 

The district court’s ruling “should be upheld if there is any reasonable view of 

the evidence to support it.” United States v. Gonzalez, 190 F.3d 668, 671 (5th 

Cir. 1999) (internal quotation marks and citation omitted).

Skyberg challenges the district court’s factual findings that Olmos Park 

Police Department Officers Carlos Longoria and Kim Kalteyer were clearly 

dressed as police officers, that Officer Longoria identified himself as a police 

officer, and that Officer Kalteyer ordered him to leave the vehicle in park. The 

record reflects that the magistrate judge had the opportunity to observe Officer 

Longoria’s demeanor at the suppression hearing and review the onboard

camera video of the encounter. The district court adopted the magistrate 

judge’s factual findings on these issues. Viewing the evidence in the light most 

favorable to the Government, we conclude that Skyberg has failed to show that 

the district court’s factual findings are clearly erroneous. See Gibbs, 421 F.3d 

at 357.

Skyberg also argues that the officers lacked reasonable suspicion to 

approach his vehicle and probable cause to arrest him for evading arrest or 

detention. Taking into account the totality of the circumstances and viewing 

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the evidence in the light most favorable to the Government, we conclude that 

Officers Longoria and Kalteyer had a reasonable, articulable suspicion upon 

which to detain Skyberg. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000); 

United States v. Watson, 953 F.2d 895, 897 (5th Cir. 1992). Specifically, given 

the time of night, the fact that Skyberg was slumped over the steering wheel 

of a vehicle that had its lights turned off but was running, and Skyberg’s 

reaction upon noticing the officers, the officers had a particularized and 

objective basis for suspecting that Skyberg was about to drive away while 

intoxicated or in an otherwise impaired condition. 

The totality of the facts and circumstances within the officers’ knowledge 

at the moment of Skyberg’s arrest were likewise sufficient for a reasonable 

officer to conclude that Skyberg had committed, or was in the process of 

committing, the offense of evading arrest or detention. See United States v. 

Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc) (per curiam); Ester v. State, 

151 S.W.3d 660, 664 (Tex. App. 2004); TEX. PENAL CODE § 38.04. Specifically, 

Officer Longoria testified that the area was well-lit, that he and Officer 

Kalteyer were in full uniform and in marked patrol units, and that he 

identified himself as a police officer. Upon seeing the officers, Skyberg 

immediately placed the vehicle in drive, causing it to lurch forward 

approximately five to ten feet. Despite Officer Kalteyer’s orders that Skyberg 

stop and put the vehicle in park, the vehicle lurched forward and stopped 

several times as the gearshift was moved back and forth from park to drive. 

Although Skyberg did not see the officers approach his vehicle, a reasonable 

officer could have concluded that his reaction to their presence was due to the 

fact that he knew they were police officers. Further, even if Skyberg was 

initially unaware that they were police officers, Officer Kalteyer’s orders to 

stop and put the vehicle in park were made while he was in full uniform and 

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in the front passenger seat of Skyberg’s vehicle. Because Skyberg does not 

otherwise challenge the constitutionality of the subsequent inventory search, 

he has failed to show that the district court erred in denying his motion to 

suppress. See Ornelas, 517 U.S. at 699; see also United States v. Green, 964 

F.2d 365, 371 (5th Cir. 1992). 

Finally, Skyberg contends that the case should be remanded to the 

district court for the correction of a clerical error in the written judgment. The 

district court’s oral pronouncement of sentence reflects that the court intended 

to impose concurrent terms of 120 months of imprisonment on Count One and 

115 months of imprisonment on Count Two, with a consecutive term of 60 

months of imprisonment on Count Three, for a total of 180 months of 

imprisonment. However, the written judgment provides that Skyberg was 

sentenced to concurrent terms of 120 months of imprisonment on Counts One 

and Two, and a consecutive term of 60 months of imprisonment on Count 

Three, for a total of 180 months of imprisonment. When a conflict exists 

between the sentence orally pronounced in court and a later written judgment, 

the oral pronouncement controls. United States v. Torres-Aguilar, 352 F.3d 

934, 935 (5th Cir. 2003). Accordingly, the district court’s judgment is 

AFFIRMED as modified to reflect that Skyberg was sentenced to 115 months 

of imprisonment on Count Two. 

 

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