* 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opinion should not be published and is not precedent except under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

Fifth Circuit



## FILED

August 18, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-50889

UNITED STATES OF AMERICA

Plaintiff - Appellee

VERSUS

JIMMY DEAN MITCHELL, SR.

Defendant - Appellant

Appeal from the United States District Court

For the Western District of Texas, San Antonio

SA-00-CR-456-ALL

Before DAVIS, SMITH and DUHE’, Circuit Judges.

PER CURIAM: *

Mitchell challenges his conviction on drug trafficking

charges. He argues first that the district court erred in refusing

to suppress statemen ts he made at the time of his arrest. These

statements were made to officers while they were executing a search

warrant on Raul Garza’s mobile home where Mitchell was a guest.

Mitchell and the other occupants of the mobile home were detained2

d uring the search and before Mitchell made his statements.

Mitchell argues that the officers arrested him witho ut probable

cause and the district court should have excluded his statements as

a fruit of that violation.

The district court correctly rejected Mitchell’s argument

because the law is clear that “ a warrant to search for contraband

founded on probable cause implicitly carries with it the limited

authority to detain the occupants of the premises while a proper

search is conducted.” M ichigan v. Summers

, 452 U.S. 692, 705

(1981). During that detention, officers may draw their weapons,

handcuff the occupants, United States v. Cavazos

, 288 F.3d 706 (5th

Cir. 2002), and bring the occupants outside the residence. U nited

States v. Broussard

, 80 F.3d 1025, 10 33 (5th Cir. 1996). These

sam e cases hold that voluntary statements made during this

detention are admissible against the defendants. See C avazos

, 288

F.3d at 712; Broussard , 80 F.3d at 1033.

Mitchell argues next that the prosecutor improperly bolstered

the credibility of the testimony of key prosecution witness Timothy

Sanchez in three statements during his closing argument. As there

was no objection to these comments, this court reviews for plain

error. United States v. Goff , 847 F.2d 149, 162 (5th Cir. 1997).

The first comment was a fair response to the defense’s argument

that Sanchez was a liar and that his testimony should not be

believed because the government agreed to a lesser sentence based3

on the number of times he testified for the government. The second

challenged comment was in regard to Sanchez’s plea agreement. When,

as here, the defense contends that a plea agreement between the

government and a witness is an incentive for the witness to lie to

get a lower sentence, the government may present what amounts to

argument bolstering the credi bility of a witness if it is

specifically done in rebuttal to the defense’s comments. United

States v. Washing ton , 44 F.3d 1271, 1278 (5th Cir. 1995). The

third challenged statement was a comment by the prosecutor that the

jury should believe Sanchez over a defense witness Warren Stalbird

because both had testified before a nother jury that had believed

Sanchez and found Stalbird guilty. This evidence was already in

the record and the pr osecutor could permissibly indicate to the

jury the inferences and conclusions he wanted them to reach from

evidence in the record. I d. The district court also instructed

the jury to consider the testimony of Sanchez with great care.

There is no error on this point.

Finally, Mitchell argues that the district cour t erred in

failing to resolve his objection to the pre-sentence report’s(PSR)

treatment of his prior offenses as unrelated. This argument is

belied by the record. The district court accepted the facts found

in the PSR. The PSR recommended assigning career status to

Mitchell because his three previous convictions were unrelated. In

response to Mitch ell’s objection to this recommendation, the

probation officer gave detailed reasons why he disagreed with the4

objection. He asserted that (1) the prior offenses occurred on

separate occasions and were the subject of three separate

indictments ; and (2) the three separate indictments were not

consolidated for sentencing. At sentencing Mitchell objected to

the characterization of the offenses as unrelated but offered no

evidence or substantive arguments tending to refute the probation

officer’s reasoning. The district court overruled Mitchell’s

objection. Under these circumstances, the district court’s

accep tance of facts asserted in the PSR and overruling of

Mitchell’s arguments were adequate to resolve this disputed

sentencing issue.

Because we find no reversible error, w e affirm Mitchell’s

conviction and sentence.

AFFIRMED.