                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                      July 19, 2006
                         FOR THE FIFTH CIRCUIT
                         _____________________                  Charles R. Fulbruge III
                                                                        Clerk
                              No. 04-11474
                         _____________________

UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

                                  versus

ANTHONY LAWAN THOMAS, also known as
Jock Lamont Thomas,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                      USDC No. 4:04-CR-9-ALL
_________________________________________________________________

Before JOLLY, PRADO, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant     Thomas   conditionally    pled    guilty     to    illegal

possession of a firearm, reserving the right to appeal the District

Court’s denial of his motion to suppress evidence.               Thomas now

appeals that denial and the District Court’s imposition of an

above-Guidelines sentence.      We affirm.

     Thomas alleges no facts to sustain a constitutional violation,

regarding either the initial police approach or the subsequent

search of his vehicle.      Thomas was parked on a private driveway of

which he was not the owner, and he gives no account of his relation

     *
      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this opinion should not be published and is not precedent except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.
to the owner or the purpose of his visit.                     See United States v.

Phillips,     382    F.3d    489,    495   (5th      Cir.   2004).     He    does   not

contradict that his car was clearly visible from the street and the

driveway accessible to the public.              See United States v. Hatfield,

333 F.3d 1189, 1194 (10th Cir. 2003); Maisano v. Welcher, 940 F.2d

499, 502 (9th Cir. 1991).            The actual search of Thomas’s car was

incident to an unchallenged lawful arrest.                    The fact that Thomas

was already under control of the officers is of no consequence.

See New York v. Belton, 453 U.S. 454 (1981); Thornton v. United

States, 541 U.S. 615 (2004).

      As for Thomas’s sentence, although the District Court was

silent on what sentence it would impose under advisory Guidelines,

its articulated reasons for departing from the Guidelines show

beyond a reasonable doubt that the Fanfan error here was harmless.

The   court   held    that    the    suggested        criminal   history     category

“significantly       under-represents          the   seriousness      of    [Thomas’s]

criminal history and the likelihood that he will commit further

crimes.”      The District Court catalogued Thomas’s past crimes,

focusing on the “assaultive pattern of behavior . . . which has

lasted the past 17 years” –- aggravated assault, evading arrest,

assault with bodily injury, another assault with bodily injury,

plus miscellaneous drug offenses. The District Court then departed

according to the policy statement in U.S.S.G. § 4A1.3.                          It is

therefore     clear    that    the    advisory       nature    of    the    Sentencing

Guidelines would not have affected the District Court’s judgment.

                                           2
Thomas’s sentence was reasonable and the upward departure not an

abuse of discretion.

     Because we affirm the District Court’s denial of the motion to

suppress, and because we find that any error in sentencing was

harmless   beyond   a   reasonable   doubt,   Thomas’s   conviction   and

sentence are

                                                              AFFIRMED.




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