* 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

August 8, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50624

No. 06-50635

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GREGORY PEREZ

Defendant-Appellant

Appeal from the United States District Court 

for the Western District of Texas

No. 7:05-CR-0224

No. 7:05-CR-0094

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

In 2005, Gregory Perez was charged in the Western District of Texas with

one count of possession with intent to distribute 500 grams or more of cocaine,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). At the time, Perez was on

supervised release for a 1999 conviction in the Eastern District of Kentucky for

possession with intent to distribute marijuana. This supervision was
No. 06-50624

No. 06-50635

1 Chapman v. California, 386 U.S. 18, 24 (1967); see also Fahy v. Connecticut, 375 U.S.

85, 86-87 (1963) (“The question is whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction. To decide this question, it is necessary

to review the facts of the case and the evidence adduced at trial.”).

2

transferred to the Western District of Texas, and the Government moved to

revoke Perez’s supervised release based on a search of Perez’s property in Texas

that resulted in the discovery of cocaine and other evidence. In both cases, Perez

filed an identical motion to suppress the evidence seized during the search. The

district court denied the motion to suppress in both cases, and the drug

trafficking charge proceeded to trial. The jury found Perez guilty, and Perez was

sentenced to 120 months of imprisonment and eight years of supervised release.

The district court also found that Perez had violated the terms of his supervised

release and sentenced Perez to 18 months imprisonment to run consecutively to

the 120-month sentence. 

Perez now appeals the district court’s denial of his motions to suppress,

the sufficiency ofthe evidence to support his conviction, and the revocation of his

supervised release. We affirm the district court’s denial of the suppression

motions, Perez’s conviction, and the revocation of his supervised release.

I

Perez appeals the denial of his motions to suppress on two grounds:

(1) the good-faith exception to the warrant requirement does not apply because,

he contends, the affidavit underlying the search warrant was so lacking in

indicia of probable cause as to render official belief in its existence entirely

unreasonable, and (2) the search exceeded the scope of the warrant. We assume

without deciding that the search was illegal and perform a harmless error

analysis. The test for harmless error is whether the constitutional error “was

harmless beyond a reasonable doubt.”1
No. 06-50624

No. 06-50635

2 See Hester v. United States, 265 U.S. 57, 59 (1924) (“[T]he special protection accorded

by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not

extended to the open fields.”); Oliver v. United States, 466 U.S. 170, 178 (1984) (reaffirming

the “open fields” doctrine enunciated in Hester).

3 United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001).

4 United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995).

3

The only evidence Perez sought to suppress was binoculars and letters

addressed to Perez, which were found in Perez’s residence, and cellophane,

which was found in a shed behind the residence. The officers also found 680.28

grams of cocaine and a digital scale in the “open field” adjacent to Perez’s

property, and a bottle of Inositol (a legal substance used as a cutting agent to

add weight to cocaine) in a field on Perez’s property. Perez did not seek to

suppress these items.2 Considerable other evidence linking Perez to the cocaine

was presented to the jury. Admitting the binoculars, letters, and cellophane into

evidence was harmless error in light of the entire record. 

II

Perez contends that there is insufficient evidence to support his conviction.

Where, as here, a defendant makes a timely motion for acquittal, this court will

uphold a jury’s verdict if a reasonable trier of fact could conclude from the

evidence that the elements of the offense were established beyond a reasonable

doubt.3 After a complete review of the evidence in the light most favorable to the

jury’s verdict, we conclude that there was sufficient evidence to support Perez’s

conviction.

III

Perez contends thatthe evidence was insufficientto support the revocation

of his supervised release. We review a district court’s decision to revoke a

defendant’s supervised release for abuse of discretion.4If a district court finds

by a preponderance of the evidence that a defendant has violated a condition of
No. 06-50624

No. 06-50635

5

Id.; 18 U.S.C. § 3583(e)(3).

4

his supervised release, then the court has the discretion to revoke the previous

sentence and impose a term of imprisonment.5 The district court did not abuse

its discretion in revoking Perez’s supervised release because the evidence is

sufficient to support the finding that Perez possessed cocaine in violation of his

supervised release.

AFFIRMED.