* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited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

January 13, 2006

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-50996

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH LENZ,

Defendant-Appellant.

-------------------- Appeals from the United States District Court

for the Western District of Texas

USDC No. 5:03-CR-499-1-XR

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

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM: *

Following the denial of his motion to suppress, Kenneth Lenz

entered a conditional guilty plea to one count of conspiring to

manufacture an unspecified quantity of methamphetamine. He appeals

the denial of his motion to suppress and the 80-month sentence

imposed by the district court. We AFFIRM.

Lenz challenges the stop of his b rother’s pickup truck, in

which Lenz was a passenger, and the seizure of ev idence from the

truck. Lenz does not have standing to challenge the seizure of2

evidence. S ee United States v. Roberson

, 6 F.3d 1088, 1091 (5t h

Cir. 1993). H owever, because a stop of the vehicle results in the

seizure of the passenger, Lenz has standing to challenge the stop

of the truck. See id.

L enz argues that the stop of the truck, which occurred in a

driveway on Lenz’s property, was not based on probable cause. He

also challenges his warrantless arrest as unsupported by probable

cause. This court may affirm the district court’s ruling on a

motion to suppress based on any rationale supported by the record.

United States v. Ibarra-Sanchez

, 199 F.3d 753, 758 (5th Cir. 1999).

As the Government points out, and a review of Lenz’s

suppression motion shows, Lenz did not raise these issues in the

district court. Accordingly, our review is for plain error. See

United States v. Maldonado , 42 F.3d 906, 912 (5th Cir. 1995).

Under F ED

. R. C RIM

. P. 52(b), this court may correct forfeited

errors only when the appellant shows the follo wing factors:

(1) there is an error, (2) that is clear or obvious, and (3) that

affects his substantial rights. U nited S tates v. Calverley

,

37 F.3d 160, 164 (5th Cir. 1994) (en banc) (citing United States v.

Olano

, 507 U.S. 725, 731-37 (1993)). If these factors are

established, the decision to correct the forfeited error is within

the sound discretion of the court, and the court will not exercise

that discretion unless the error seriously affects the fairness,

integ rity, or public reputation of judicial proceedings. O lano

,

507 U.S. at 735-36.3

The stop of the truck is properly analyzed under the

reasonable suspicion standard of Terry v. Ohio

, 392 U.S. 1 (1968).

See United States v. McLaughlin , 578 F.2d 1180, 1183-84 (5th Cir.

1978); see also Scher v. United States , 305 U.S. 251, 255 (1938).

In view of the information known to surveillance agents regarding

the activities at the Dreibrodt loc ation, which were consistent

with the manufacture of methamphetamine, Lenz has not shown that

the district court plainly erred in determining that the truck was

lawfully stopped. S ee Terry

, 392 U.S. at 30; Calverley

, 37 F.3d at

164.

Upon stopping the vehicle on Lenz’s property, agents observed,

in plain view in the bed of the pickup , objects and odors

consistent with methamphetamine manufacture. These observations,

in c onjunction with other facts known to the agents, supplied

probable cause for Lenz’s warrantless arrest. S ee United States v.

Ramire z , 145 F.3d 345, 352 (5th Cir. 1998). Lenz has not

demonstrated plain error. See Calverley , 37 F.3d at 164.

Lenz contends that the stop of the truck was pretextual.

This court has held that “the constitutional reasonableness of the

stop does not depend upon the actual motivations of the officer

involved. An officer may stop a motorist for a traffic violation

even if, subjectively, the officer’s true motive is to investigate

unrelated criminal offenses.” U nited State s v. Sanchez-Pena

,

336 F.3d 431, 437 (5th Cir. 2003) (footnote omitted). As discussed

above, the surveillance agents had reasonable suspicion sufficient4

to justify a stop of the truck. Lenz has not shown error.

Lenz briefs the issue whether the “open fields” doctrine

applies, but he admits that the doctrine is “merely academic” in

this matter because the district court did not rely on it. Lenz

fails to show error on the part of the district court.

Lenz challenges the warrantless entry of his house, which took

place prior to the issuance of a search warrant. He argues that

law enforcement officers manufactured the exigent circumstances

that led to the entry of the home. However, as Lenz concedes in

his discussion of the protective sweep of his home, no evidence was

discovered during the warrantless entry, and Lenz does not contest

the district court’s determination that the affidavit in support of

the search warrant was untainted by the warrantless entry. This

court has stated that “(an) appellant( ) cannot complain of

evidence which might have been discovered and introduced, but was

not.

. . .” U nited States v. Poole

, 557 F.2d 531, 53 6 (5th Cir.

1977).

Lenz argues that there was not probable cause to support the

issuance of a search warrant for his house. Because Lenz did not

raise this issue in the district court, we review for plain error.

See Maldonado , 42 F.3d at 912.

This court’s review of the district court’s denial of a motion

to suppress evidence obtained pursuant to a warrant consists of two

steps : “(1) whether the good-faith exception to the exclusionary

rule applies; and (2) whether probable cause suppor ted the5

warrant.” U nited States v. Satterwhite

, 980 F.2d 317, 320 (5th

Cir. 1992). Lenz has not shown that the good-faith exception to

the exclusionary rule does not apply, and, based on the facts known

to surveillance officers, as set forth in the affidavit, the

warrant was supported by probable cause. S ee id. ; United States v.

McKeever

, 5 F.3d 863, 865 (5th Cir. 1993). Lenz has not shown

plain error. See Calverley , 37 F.3d at 164.

Lenz a lso contends that the district court erred in its

determination that the independent source rule was applicable, such

that, even if the protective swee p was invalid, the evidence

obtained pursuant to the search warrant was admissible because it

was not taint ed by the sweep. As noted above, Lenz has conceded

that no evidence was obtained during the warrantless entry of his

home, and he has not s hown erroneous the district court’s

determination that the warrant was not tainted by the warrantless

entry. Lenz has failed to show that the independent source rule is

inapplicable. S ee United States v. Runyan

, 290 F.3d 223, 235 (5th

Cir. 2002).

Lenz has failed to establish reversible error with respect to

his motion to suppress. Accordingly, his conviction is affirmed.

Lenz, noting that he did not admit to a quantity of

methamphetamine, attacks the 80-month sentence imposed by t h e

district court, arguing that it was imposed in violation of the

Sixth Amendment because it was based on a quantity of

methamphetamine determined by the district court. The district6

court erred in enhancing Lenz’s sentence based on its determination

of drug quant ity and by sentencing Lenz pursuant to mandatory

Sentencing Guidelines. S ee United States v. Booker

, 125 S. Ct.

738, 750, 768-69 (2005).

As the Government points out, however , the district court

stated that it would impose the same sentence if the Sentencing

Guidelines were held unconstitutional. The Government has carried

its burden of establishing that the sentencing errors suffered by

Lenz were harmless beyond a reasonable doubt. S ee United States v.

Pineiro

, 410 F.3d 282, 285 (5th Cir. 2005). Accordingly, Lenz’s

sentence is affirmed.

AFFIRMED.