                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                         April 23, 2004

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                                    No. 03-10321
                                  Summary Calendar



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

DAVID L. STEVENSON,

                                             Defendant-Appellant.

                          --------------------
              Appeal from the United States District Court
                   for the Northern District of Texas
                           (3:00-CR-406-ALL-R)
                          --------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant David L. Stevenson appeals his conviction

and sentence for being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1).                  He first challenges the

district court’s denial of his motion to suppress the firearms

found    in   the    trunk   of    his   vehicle.     There   is   no   merit     to

Stevenson’s argument that Fifth Circuit precedent precludes an

officer from using suspicion of illegal window tint as a basis for

reasonable suspicion or probable cause for a traffic stop.                        He


     *
        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this opinion should not be published and is not precedent except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.
cites the dissent in United States v. Guerrero-Barajas, 240 F.3d

428, 433 (5th Cir. 2001), a case which, along with United States v.

Villalobos, 161 F.3d 285 (5th Cir. 1998) and United States v. Diaz,

977 F.2d 163 (5th Cir. 1992), is inapposite.           “[T]he decision to

stop an automobile is reasonable where the police have probable

cause to believe that a traffic violation has occurred.”          Whren v.

United States, 517 U.S. 806, 810 (1996).        As excessive window tint

is a violation of TEX. TRANSP. CODE § 547.613, and Stevenson’s

windows were darker than was legally permissible, the stop was

supported by probable cause.   See Terry v. Ohio, 392 U.S. 1 (1968).

Officer Casey’s testimony that he used the suspected window tint

violation   to   investigate   his       suspicion   that   Stevenson   was

impersonating a police officer has no bearing on the analysis: The

subjective motivation of a law enforcement agent is irrelevant when

his actions are based on objective factors that justify such

behavior.   See Whren, 517 U.S. at 813; United States v. Sanchez-

Pena, 336 F.3d 431, 437 (5th Cir. 2003).

     Also lacking merit is Stevenson’s argument that the search and

seizure from his vehicle of a police baton and handcuffs was not

reasonably related in scope to the circumstances that justified the

stop, see Terry v. Ohio, 392 U.S. at 1.          Stevenson has presented

nothing to contradict Officer Casey’s testimony that he saw the

baton and handcuffs, items possessed by police officers, through

the window of the vehicle when he approached with the tint meter.

This sequence of events is corroborated by the videotape introduced

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at the suppression hearing.     The baton and cuffs were in “plain

view,” and, because they might be useful in establishing that

Stevenson was guilty of impersonating a police officer, Officer

Casey’s seizure of those items was lawful.     United States v. Hill,

19 F.3d 984, 989 (5th Cir. 1994).

      In calculating Stevenson’s guideline range of imprisonment,

the   probation   officer   assessed   a   two-level   adjustment   for

obstruction of justice, pursuant to U.S.S.G. § 3C1.1, because

Stevenson had perjured himself at trial regarding his ownership and

possession of the weapons in the vehicle’s trunk and his prior

conviction for bank embezzlement.      There is no factual basis for

Stevenson’s argument that his objection to the two-level adjustment

obligated the court to make independent findings on each element of

his alleged perjury because he did not actually object to the

adjustment.   Even construing his argument as one that the court

erred in imposing the two-level adjustment, he cannot prevail

because he has not shown error, much less plain error.      See United

States v. Olano, 507 U.S. 725, 732-35 (1993).

      Over Stevenson’s objection, the district court adopted the

Presentence Report’s (PSR’s) four-level adjustment pursuant to

§ 2K2.1(b)(5), because Stevenson used or possessed a firearm in

connection with another felony offense, viz., impersonating a

public servant.   Stevenson presented no evidence at the sentencing

hearing to rebut this factual conclusion in the PSR.        See United

States v. Peters, 283 F.3d 300, 314 (5th Cir.), cert. denied, 536

                                  3
U.S. 934 (2002).       In light of the evidence presented at the

suppression hearing, it was not clear error for the district court

to conclude that Stevenson had the intent to induce Officer Casey

and others to submit to his pretended official authority or to rely

on his pretended official acts.      TEX. PENAL CODE § 37.11(a)(1);

United States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2002).

     Stevenson’s   argument   that   18   U.S.C.   §   922(g)(1)   is

unconstitutional is foreclosed by prior precedent to the contrary.

United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003);

United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001).

     Stevenson asserts that the district court erred in denying his

motion for mistrial after the government, in closing argument,

referred to his defense as the “O. J. Simpson defense.”            Any

prejudicial effect, however, was minimal.     See United States v.

Newell, 315 F.3d 510, 527 (5th Cir. 2002); see e.g., United States

v. Papajohn, 212 F.3d 1112, 1121 (8th Cir. 2000). Furthermore, the

court sustained counsel’s objection, thereby putting the jury on

notice that the remark was improper.        In light of the ample

evidence supporting the charge that Stevenson was a felon in

possession of a weapon, the district court cannot be said to have

abused its discretion. See United States v. Griffin, 324 F.3d 330,

361 (5th Cir. 2003).

AFFIRMED.




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