                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                      June 13, 2005

                                                        Charles R. Fulbruge III
                                                                Clerk
                            04-41165
                        Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                             versus

                       LINWOOD WAYNE HUFF,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (2:04-CR-84-1)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Linwood Wayne Huff appeals his conviction and sentence for

possession with intent to distribute crack cocaine.    Huff claims:

the district court erred by denying his motion to suppress based

upon an illegal search and seizure; the requirement in United

States Sentencing Guideline § 3E1.1(b), which states that a third-

level of reduction for acceptance of responsibility can only be

given upon motion by the Government, violates the separation of

powers doctrine; the Government’s refusal to move for that third-



     *
       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this opinion should not be published and is not precedent except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.
level reduction was based on an unconstitutional motive; and the

district court plainly erred in sentencing him under a mandatory,

as opposed to advisory, Guidelines system.

      The denial of a motion to suppress is reviewed under a two-

tiered standard of review: factual findings are reviewed for clear

error, issues of law de novo.             E.g., United States v. Villalobos,

161   F.3d    285,   288    (5th    Cir.       1998).     Huff’s    constitutional

challenges are reviewed de novo.                 E.g., United States v. Romero-

Cruz, 201 F.3d 374, 377 (5th Cir.), cert. denied, 529 U.S. 1135

(2000).      As noted, Huff concedes that his claim that his sentence

violates the Sixth Amendment is reviewed for plain error only.

      The investigatory stop and frisk of Huff did not violate his

Fourth    Amendment     rights.       Among       other   things,   there    was   no

unconstitutional seizure.           See United States v. Shabazz, 993 F.2d

431, 436 (5th Cir. 1993).          Officer Goodman was able to corroborate

the anonymous tip, thereby providing Goodman with the requisite

reasonable suspicion to justify the stop.                    And, Goodman had a

reasonable     belief      that    Huff    was    armed   and   dangerous,    which

justified the frisk.        See United States v. Reyes, 349 F.3d 219, 224

(5th Cir. 2003); United States v. Rodriguez, 835 F.2d 1090, 1092

(5th Cir. 1988).

      Huff’s constitutional challenge, based upon separation of

powers, to U.S.S.G. § 3E1.1(b) is moot in the light of United

States v. Booker, 125 S. Ct. 738 (2005).                        We reject Huff’s


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contention that the Government’s refusal to move for a third-level

credit    for   acceptance     of    responsibility     was   based     on     an

unconstitutional    motive.         Huff’s   suppression   hearing     was   the

substantive equivalent of a full trial, requiring the Government’s

full preparation; and, therefore, the Government was justified in

not moving for the additional credit.            U.S.S.G. § 3E1.1(b); cf.

United States Gonzales, 19 F.3d 982, 984 (5th Cir.), cert. denied,

513 U.S. 887 (1994).

     Finally, Huff has not established, that but for the district

court’s   plain   error   in    sentencing      him   under   the    mandatory

Guidelines regime held unconstitutional in Booker, the outcome of

his proceedings would likely have been different.                   See United

States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005), petition for

cert. filed, (U.S. 31 Mar. 2005) (No. 04-9517). In this regard, the

district court sentenced Huff to the high-end of the applicable

range to achieve the desired punishment.

                                                                    AFFIRMED




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