* 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that this opinion should not be published and is not precedent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

Fifth Circuit

FILED

March 26, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41053

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JED STEWART LINEBERRY,

Defendant-Appellant.

--------------------

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 4:02-CR-113-ALL

--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Jed Stewart Lineberry appeals his jury trial conviction

and the sentence imposed for being a felon in possession of a

firearm. Lineberry was sentenced to a term of imprisonment of 63

months to be followed by a three-year term of supervised release.

Lineberry argues that his motion to suppress evidence seized

from his residence should have been granted because the warrant

authorizing the search was not issued in accordance with FED. R.
No. 03-41053

-2-

CRIM. P. 41. Rule 41 applies only to warrants sought by federal

officers. Because the warrant herein was issued by a state

magistrate at the request of a state officer, the rule is

inapplicable. See United States v. McKeever, 905 F.2d 829, 832

(5th Cir. 1990) (en banc). 

Although the warrant did not specifically authorize the

seizure of firearms, Lineberry’s argument that the seizure of the

weapons should be suppressed is without merit. The incriminating

character of the weapons was immediately apparent to the officers

because they were aware that a prostitution business was being

operated on the premises, in addition to drugs being unlawfully

used therein, and that Lineberry was a convicted felon. See

United States v. Hill, 19 F.3d 989, 989 (5th Cir. 1994). 

Lineberry’s argument that the affidavit supporting the

warrant was prepared after his arrest was rebutted by the

testimony of Detective Coburn that the date in the body of

the affidavit was the date that he knew the warrant would be

executed. Lineberry’s argument that the warrant was not

sufficiently specific with respect to the persons to be arrested

and the suspected criminal activity is meritless because the

warrant incorporated the affidavit, which included all of the

relevant information.

Lineberry argues that the search was unconstitutional

because the officers entered his residence without an

announcement or knocking on the door. The officers had a
No. 03-41053

-3-

reasonable suspicion that Lineberry was in possession of firearms 

and drugs that could have been disposed of if an announcement was

made by the officers. The officers had a reasonable belief that

an announcement would endanger the officers and the occupants and

that evidence could be destroyed. Thus, there were exigent

circumstances warranting the unannounced entry. See United

States v. Banks, 124 S. Ct. 521, 525 (2003).

The record does not reflect whether the search of

Lineberry’s trash violated the Fourth Amendment because there

was no evidence presented as to its specific location or its

accessibility to the public. See United States v. Headrick,

922 F.2d 396, 397-99 (5th Cir. 1991). However, even if the

evidence that empty steroid vials and syringes were found in the

trash had not been included in the affidavit seeking the warrant,

there was sufficient other evidence in the affidavit showing that

illegal activity warranted the search. 

Lineberry failed to demonstrate that the Government

suppressed evidence in violation of Brady v. Maryland, 373 U.S.

83 (1963) because he was aware of the existence of the photograph

and the tape of his meeting with Coburn prior to trial. Further,

these items did not constitute exculpatory or impeachment

evidence that would have had an effect on the outcome of the

trial. Brady, 373 U.S. at 87; Kyles v. Whitley, 514 U.S. 419,

436 (1995). 
No. 03-41053

-4-

Lineberry argues that he should not have been classified as

a convicted felon in possession because there was no evidence

that he possessed the firearms found in his home. He argues that

the evidence showed that the weapons belonged to his wife or his

father.

Lineberry’s wife testified that Lineberry purchased and

owned the guns found in their home. Lineberry’s father’s

testimony that he hid the firearms all over Lineberry’s house

without Lineberry’s knowledge was not credible. Lineberry

admitted in a taped conversation with Coburn that he possessed

firearms. There was sufficient evidence for a rational trier of

fact to find beyond a reasonable doubt that Lineberry was in

possession of firearms. Jackson v. Virginia, 443 U.S. 307, 319

(1979).

Lineberry’s argument that he should not have been classified

as a convicted felon because his civil rights were restored under

Texas law is unavailing. Lineberry’s prior conviction occurred

in Arkansas and was a felony under the laws of that state. 

He has not demonstrated that his civil rights were restored by

the State of Arkansas. Thus, he is a convicted felon within the

meaning of 18 U.S.C. § 921(a)(20) and § 922(g)(1).

The district court did not clearly err in assigning three

criminal history points to Lineberry for his prior conviction

that occurred more than fifteen years prior to his arrest for the

instant offense. There was reliable evidence that Lineberry
No. 03-41053

-5-

engaged in relevant conduct within fifteen years of his last

release from incarceration in connection with that offense. 

See U.S.S.G. §§ 4A1.2(d)(2), (e); § 4A1.2, comment. (n.8); 

§ 4A1.2(k)(2)(B). Thus, the prior sentence could be considered.

The district court did not plainly err in assigning criminal

history points for Lineberry’s prior misdemeanor offenses. 

Lineberry did not argue in the district court, and has not shown

on appeal, that the district court plainly erred in determining

that these offenses were not violations of city ordinances within

the meaning of U.S.S.G. § 4A1.2(c)(1). United States v.

Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc).

The criminal history point given for Lineberry’s sentence

of a $250 fine for his offense of obstructing governmental

operations was not plain error because a sentence specifying a

fine is treated as a non-imprisonment sentence warranting the

addition of one point. See § 4A1.2(c), § 4A1.2, comment. (n.4). 

Lineberry’s diversionary sentence for failing to maintain vehicle

transportation records also qualified for the assignment of an

additional point. See § 4A1.2(f); § 4A1.2, comment. (n.9).

In light of the evidence that several of the firearms were

found loaded in easily accessible locations in the house, there

is no support for Lineberry’s assertion that the firearms found

in the search of his home were used for sporting or collection

purposes. Thus, there was no plain error in failing to make a

six-level reduction of Lineberry’s offense level pursuant to 
No. 03-41053

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§ 2K2.1(b)(2). 

Lineberry also challenges the four-level upward adjustment

of his offense level for using or possessing any firearms or

ammunition in connection with another felony offense because he

contends that there was no credible evidence that he committed

another felony offense. Financing and promoting a prostitution

organization is a felony under Texas law, and there was reliable

evidence in the record to support a finding that Lineberry

organized and operated a prostitution ring involving at least two

or more prostitutes. See TEX. PENAL CODE ANN. § 43.04. The fourlevel adjustment of Lineberry’s offense level pursuant to 

§ 2K2.1(b)(5) for use of a firearm in connection with another

felony offense was not an erroneous determination.

Lineberry’s conviction and sentence are AFFIRMED. 

Lineberry’s appeal from the district court’s order refusing

to consider Lineberry’s pro se motion for release pending appeal

is DISMISSED as MOOT.