     Case: 16-51458      Document: 00514249103         Page: 1    Date Filed: 11/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                    No. 16-51458                                   FILED
                                  Summary Calendar                         November 27, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JESSE KYLE SKYBERG, also known as Jesse Skyberg, also known as Jesse
K. Skyberg, also known as Jessie Kyle Skyberg,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CR-41-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jesse Kyle Skyberg appeals his guilty plea conviction for one count of
possession with intent to distribute 50 grams or more of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count One), one count of
possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)
and 924(a)(2) (Count Two), and one count of using, carrying, and possessing a



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-51458

firearm in furtherance of a drug trafficking crime in violation of § 924(c) (Count
Three). He contends that the district court erred in denying his motion to
suppress evidence seized following the warrantless search of the vehicle he was
driving at the time of his arrest for evading arrest or detention.
      When reviewing the denial of a motion to suppress, we review factual
findings for clear error and the ultimate constitutionality of law enforcement’s
action de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996). In addition
to deferring to the district court’s factual findings, we must view the evidence
in the light most favorable to the prevailing party, which in this case is the
Government. See United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005).
The district court’s ruling “should be upheld if there is any reasonable view of
the evidence to support it.” United States v. Gonzalez, 190 F.3d 668, 671 (5th
Cir. 1999) (internal quotation marks and citation omitted).
      Skyberg challenges the district court’s factual findings that Olmos Park
Police Department Officers Carlos Longoria and Kim Kalteyer were clearly
dressed as police officers, that Officer Longoria identified himself as a police
officer, and that Officer Kalteyer ordered him to leave the vehicle in park. The
record reflects that the magistrate judge had the opportunity to observe Officer
Longoria’s demeanor at the suppression hearing and review the onboard
camera video of the encounter. The district court adopted the magistrate
judge’s factual findings on these issues. Viewing the evidence in the light most
favorable to the Government, we conclude that Skyberg has failed to show that
the district court’s factual findings are clearly erroneous. See Gibbs, 421 F.3d
at 357.
      Skyberg also argues that the officers lacked reasonable suspicion to
approach his vehicle and probable cause to arrest him for evading arrest or
detention. Taking into account the totality of the circumstances and viewing



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                                 No. 16-51458

the evidence in the light most favorable to the Government, we conclude that
Officers Longoria and Kalteyer had a reasonable, articulable suspicion upon
which to detain Skyberg. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000);
United States v. Watson, 953 F.2d 895, 897 (5th Cir. 1992). Specifically, given
the time of night, the fact that Skyberg was slumped over the steering wheel
of a vehicle that had its lights turned off but was running, and Skyberg’s
reaction upon noticing the officers, the officers had a particularized and
objective basis for suspecting that Skyberg was about to drive away while
intoxicated or in an otherwise impaired condition.
      The totality of the facts and circumstances within the officers’ knowledge
at the moment of Skyberg’s arrest were likewise sufficient for a reasonable
officer to conclude that Skyberg had committed, or was in the process of
committing, the offense of evading arrest or detention. See United States v.
Castro, 166 F.3d 728, 733 (5th Cir. 1999) (en banc) (per curiam); Ester v. State,
151 S.W.3d 660, 664 (Tex. App. 2004); TEX. PENAL CODE § 38.04. Specifically,
Officer Longoria testified that the area was well-lit, that he and Officer
Kalteyer were in full uniform and in marked patrol units, and that he
identified himself as a police officer.    Upon seeing the officers, Skyberg
immediately placed the vehicle in drive, causing it to lurch forward
approximately five to ten feet. Despite Officer Kalteyer’s orders that Skyberg
stop and put the vehicle in park, the vehicle lurched forward and stopped
several times as the gearshift was moved back and forth from park to drive.
Although Skyberg did not see the officers approach his vehicle, a reasonable
officer could have concluded that his reaction to their presence was due to the
fact that he knew they were police officers. Further, even if Skyberg was
initially unaware that they were police officers, Officer Kalteyer’s orders to
stop and put the vehicle in park were made while he was in full uniform and



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                                   No. 16-51458

in the front passenger seat of Skyberg’s vehicle. Because Skyberg does not
otherwise challenge the constitutionality of the subsequent inventory search,
he has failed to show that the district court erred in denying his motion to
suppress. See Ornelas, 517 U.S. at 699; see also United States v. Green, 964
F.2d 365, 371 (5th Cir. 1992).
      Finally, Skyberg contends that the case should be remanded to the
district court for the correction of a clerical error in the written judgment. The
district court’s oral pronouncement of sentence reflects that the court intended
to impose concurrent terms of 120 months of imprisonment on Count One and
115 months of imprisonment on Count Two, with a consecutive term of 60
months of imprisonment on Count Three, for a total of 180 months of
imprisonment. However, the written judgment provides that Skyberg was
sentenced to concurrent terms of 120 months of imprisonment on Counts One
and Two, and a consecutive term of 60 months of imprisonment on Count
Three, for a total of 180 months of imprisonment. When a conflict exists
between the sentence orally pronounced in court and a later written judgment,
the oral pronouncement controls. United States v. Torres-Aguilar, 352 F.3d
934, 935 (5th Cir. 2003).        Accordingly, the district court’s judgment is
AFFIRMED as modified to reflect that Skyberg was sentenced to 115 months
of imprisonment on Count Two.




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