                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          DEC 18 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 00-3043
                                                  (D.C. No. 99-CR-10058)
 JONEARL B. SMITH,                                       (D. Kan.)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Defendant-Appellant Jonearl Smith appeals from the district court’s denial

of his motion to suppress evidence and the district court’s refusal to grant him a

downward departure in sentencing. We have jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a) and we affirm.




       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
                                     Background

      In May 1999, Mr. Smith was indicted on one count of being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1). The firearm was discovered when

a police officer stopped Mr. Smith’s car to investigate a crack in the car’s

windshield. In his motion to suppress, Mr. Smith argued that the officer did not

have a specific, articulable basis for making the traffic stop and, therefore, that all

the evidence found as a result of the stop, including the firearm, should be

excluded.

      At the suppression hearing, the officer testified that he stopped Mr. Smith

because of a cracked windshield, a potential violation of Wichita, Kansas, City

Code § 11.60.260(d). 1 The district court found that even though the windshield

crack did not obstruct the operator’s vision (and therefore did not violate the city

ordinance), the officer “had a specific, articulable basis for suspecting the driver

of violating the ordinance,” and “[a]s such, he had an objectively reasonable basis

for conducting an investigative detention to determine if there was a violation.”

Aplt. Br. Addendum B at 6-7. The district court therefore denied the motion to

suppress.

      The case went to trial and the jury found Mr. Smith guilty. Objecting to his


      1
       Wichita, Kansas, City Code § 11.60.260(d) states: “No person shall
operate any motor vehicle upon a public roadway with a windshield . . . which is
cracked or shattered in any manner which obstructs the operator’s vision.”

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presentence report, Mr. Smith argued that the district court should grant him a

downward departure in sentencing because his prior attorney had entered guilty

pleas to three misdemeanors in Municipal Court without his knowledge or

authorization. Because each of these convictions was assessed one criminal

history point, Mr. Smith argued that his prior criminal history should be reduced

by three criminal history points, from nine to six. Based on this court’s holding

in United States v. Simpson, 94 F.3d 1373 (10th Cir. 1996), the district court

denied Mr. Smith’s request for a downward departure and sentenced Mr. Smith to

fifty-one months’ imprisonment.



                                     Discussion

      On appeal from a denial of a suppression motion, we review the district

court’s factual findings for clear error. United States v. Long, 176 F.3d 1304,

1307 (10th Cir. 1999). We must consider the totality of the circumstances and

view the evidence in the light most favorable to the government. United States v.

Hunnicutt, 135 F.3d 1345, 1348 (10th Cir. 1998). However, we review the

ultimate determination of reasonableness under the Fourth Amendment de novo.

Id.

      “An initial traffic stop is valid under the Fourth Amendment not only if

based on an observed traffic violation, but also if the officer has a reasonable


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articulable suspicion that a traffic or equipment violation has occurred or is

occurring.” Id. The government does not need to show that a violation actually

occurred to justify the initial stop. Id.

      In this case, we conclude that none of the district court’s factual findings

were clearly erroneous. The district court found that the officer had only a quick

initial look at Mr. Smith’s car as it drove by in the opposite direction, that the

officer saw a crack in the car’s windshield located in the middle or on the

passenger side which ran vertically from the bottom to the middle of the

windshield, and that the officer thought that the car might be in violation of the

Wichita traffic ordinance concerning cracked windshields. Based on the totality

of these circumstances and viewing the evidence in the light most favorable to the

government, we agree that the officer had a “reasonable articulable suspicion”

that a traffic violation had occurred. The district court’s ultimate conclusion that

the windshield was not cracked in such a way as to violate the ordinance is

irrelevant.

      In regards to Mr. Smith’s motion for a downward departure in sentencing,

we review the district court’s factual findings at sentencing for clear error and its

interpretation of the Sentencing Guidelines de novo. Simpson, 94 F.3d at 1380;

see also United States v. Garcia, 42 F.3d 573, 575 n.2 (10th Cir. 1994)

(“Although we have no jurisdiction to review a district court’s discretionary


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decision refusing to depart downward, a district court’s decision that it lacked

authority to consider downward departure is subject to our review.”). In this case,

we are bound by our holding in Simpson, 94 F.3d at 1381-82. Mr. Simpson

argued that because his prior counsel had entered a plea without his consent, that

conviction should not be used in his criminal history calculation. We held that

unless the collateral attack on the previous conviction is based on the complete

denial of counsel, a district court sentencing a defendant under the guidelines is

precluded from considering the collateral attack. Id. at 1381. Mr. Smith’s

attempts to distinguish his case from Simpson are unpersuasive. As the district

court in this case correctly pointed out, Mr. Smith can attempt to have his prior

convictions declared invalid through habeas relief, and, if successful, he may

petition to reopen the sentence in this case. See Custis v. United States, 511 U.S.

485, 497 (1994). However, Simpson dictates that Mr. Smith’s current attack must

fail.

        AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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