           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 14, 2009

                                     No. 08-11057                      Charles R. Fulbruge III
                                   Consolidated with                           Clerk
                                     No. 08-11084
                                   Summary Calendar


UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

FREDDY LEE FOOTS

                                                   Defendant-Appellant




                   Appeals from the United States District Court
                        for the Northern District of Texas
                    USDC Nos. 3:07-CR-285-1; 3:88-CR-121-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Freddy Lee Foots was convicted by a jury for
interfering with commerce by threats or violence, and using, carrying, and
brandishing a firearm during or in relation to a crime of violence. Foots now
asks this court to vacate his two convictions and remand to the district court for
resentencing. He contends that the police conducted an unlawful search and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                            Nos. 08-11057, 08-11084

seizure in violation of the Fourth Amendment, that there was insufficient
evidence to establish use of a real firearm, and that his sentence was
unreasonable. We AFFIRM.
                              I. BACKGROUND
      On the morning of September 5, 2007, an armored transport car unloading
money at a Compass Bank in Dallas, Texas was robbed. Sergio Lopez, one of the
men delivering the money to the bank, testified that a dark-colored minivan
approached and two individuals wearing masks exited the van, pointing long
guns at him. Fearing for his life, Lopez told them to take the money, ran to a
nearby business, and called 911. The two suspects took $1,977,952.90 from the
armored car, fled from the bank, and abandoned their minivan in a library
parking lot. A library employee told police that he observed three black males
removing items from a minivan and placing them into a four-door sedan.
      A confidential source later contacted the Dallas Police Department with
the information that Freddy Lee Foots was one of the men who had robbed the
armored car. The source told police that after the robbery, Foots bought a black,
four-door Mercedes Benz and gave the police an address where Foots could be
found. The police set up surveillance at this address, which was revealed by a
public records search to be the address of Foots’s girlfriend, Virginia Owens. The
police observed a black, four-door Mercedes at, and then leaving, Owens’s home.
When questioned about the Mercedes, Owens told police that Foots had just
purchased it.
      On September 14, a Reeves County Sheriff’s deputy observed a black
Mercedes with no visible registration traveling west on Interstate 20. When the
deputy tried to stop the Mercedes for a traffic violation, the driver refused to
stop, and a high-speed chase ensued. After traveling at sufficiently high speeds
to evade law enforcement, officers later located the Mercedes and Foots at an



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Econo Lodge Motel in Van Horn, Texas. Foots was arrested and transported
from the scene.
      Deputy Ray Nunez of the Culberson County Sheriff’s Department searched
the Mercedes. He used the keys to unlock and open the trunk. In the trunk he
found and opened a closed blue duffel bag and discovered $467,022 in United
States currency banded with labels that read “Federal Reserve Bank” and
“Compass Bank.”
      The grand jury indicted Foots for interference with commerce by threats
or violence in violation of 18 U.S.C. § 1951(a) (“Count 1”), and using, carrying,
and brandishing a firearm during or in relation to a crime of violence in violation
of 18 U.S.C. § 924(c)(1)(A) (“Count 2”). Before trial, Foots filed a motion to
suppress the evidence seized during the search of his Mercedes. After a hearing,
the district court denied Foots’s motion, concluding that the search was a valid
inventory search. The case went to trial and the jury found Foots guilty as
charged. At sentencing, the district court upwardly varied on both counts from
the advisory Guidelines range, sentencing Foots to 240 months’ imprisonment
on Count 1 and 110 months’ imprisonment on Count 2, with the terms to run
consecutively. The district court also revoked supervision and sentenced Foots
to 36 months’ imprisonment, to run concurrently to the term of imprisonment
imposed on Counts 1 and 2. Foots timely appealed.
                               II. DISCUSSION
A.    Motion to Suppress
      As his first ground for appeal, Foots contends that the district court erred
by concluding that the search of his Mercedes was a valid inventory search and
consequently denying his motion to suppress.            Foots submits that the
Government presented insufficient evidence to show that the search was
conducted pursuant to standardized procedures and presented no evidence



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demonstrating that the police were authorized to search closed containers inside
a locked trunk.
       We review the district court’s fact findings on a motion to suppress for
clear error and its legal conclusions de novo.1 United States v. Gonzalez, 190
F.3d 668, 671 (5th Cir. 1999).           “We will not find a district court’s factual
determination to be clearly erroneous unless we are left with the definite and
firm conviction that a mistake has been committed[.]” United States v. Andrews,
22 F.3d 1328, 1333 (5th Cir. 1994). We view the evidence in the light most
favorable to the party that prevailed below, here the Government. Id. “[T]he
district court’s denial of the motion to suppress ‘should be upheld if there is any
reasonable view of the evidence to support it.’” Gonzalez, 190 F.3d at 671
(quoting United States v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993)).
       “The fourth amendment proscribes . . . unreasonable searches and
seizures. To be reasonable a search must normally be conducted pursuant to a
warrant, but courts have long recognized an exception to the warrant
requirement for so-called ‘inventory searches’ of automobiles.” Andrews, 22 F.3d
at 1333-34 (quoting United States v. Prescott, 599 F.2d 103, 105 (5th Cir. 1979)).
Inventory searches are excepted from the warrant requirement because they are
not designed to uncover evidence of criminal activity and because they serve


       1
         The Government urges this court to find waiver, or at the very least review for plain
error only, because Foots’s supplemental motion to suppress and his argument at the
suppression hearing focus not on his initially pleaded theory that the police performed an
invalid inventory search, but rather on a subsequently pleaded theory that the police
performed an invalid search incident to arrest.
       We first note that Foots does not argue to this court that the search constituted an
unconstitutional search incident to arrest, and therefore we will not consider that theory here.
As for Foots’s argument that the search was an invalid inventory search, we decline to find
waiver or apply the heightened plain-error standard of review. By filing a supplemental
motion, rather than an amended one, Foots indicated an intent to add to, rather than
supplant, his prior motion. Moreover, “[w]here a fundamental constitutional right . . . is
concerned, [this court] indulge[s] every reasonable presumption against waiver.” United
States v. Cano, 519 F.3d 512, 517 (5th Cir. 2008). As such, we will review the district court’s
denial of Foots’s motion to suppress.

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                            Nos. 08-11057, 08-11084

three “caretaking purposes”: “to protect the owner’s property while it is in police
custody, to protect the police against claims of lost or stolen property, and to
protect the police and the public from potential danger.” Id. at 1334. Inventory
searches must be conducted according to standard regulations and procedures,
consistent with the proper purpose of a noninvestigative inventory search.
Florida v. Wells, 495 U.S. 1, 4-5 (1990); Colorado v. Bertine 479 U.S. 367, 374
(1987). In other words, “inventory policies must be adopted which sufficiently
limit the discretion of law enforcement officers to prevent inventory searches
from becoming evidentiary searches.”        United States v. Como, 53 F.3d 87, 92
(5th Cir. 1995) (quoting Andrews, 22 F.3d at 1336).
       Foots relies heavily on United States v. Judge, 846 F.2d 274 (1988), to
show that the inventory search of his Mercedes violated the Fourth Amendment.
In Judge, agents from the Drug Enforcement Administration (“DEA”) conducted
an inventory search of Judge’s vehicle. Id. at 275. They opened the trunk,
opened a closed bag inside the trunk, and discovered $65,000 in cash. Id. The
only testimony before the district court was that the standard procedure is to
inventory seized vehicles either at the scene or at the Government’s parking
garage. Id. at 276. On appeal, this court held that a police officer conducting an
inventory search may open a closed container found inside a locked trunk so long
as the search is being conducted pursuant to standardized police caretaking
procedures.   Id.   Because the Government, by its own admission, failed to
produce any evidence that the DEA agents relied on standardized criteria
requiring that closed containers be opened during an inventory search, it was
impossible to discern whether the inventory search was constitutional under
Colorado v. Bertine, 479 U.S. 367, 740-42 (1987) (holding that an inventory
search is reasonable when it is conducted according to standardized criteria).
Id.   Accordingly, the case was remanded to the district court to determine
whether DEA procedures required the opening of closed containers to inventory

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their contents. Id. at 277. If not, then a new trial was mandated and the
$65,000 had to be suppressed. Id. at 277.
      Since Judge, both the Supreme Court and this court have further
elaborated on what constitutes a constitutional inventory search. In 1990, the
Supreme Court decided Wells, which involved an inventory search conducted by
a highway patrol trooper. 495 U.S. at 2. The trooper opened the trunk of a car,
opened a locked suitcase in the trunk of the car, and discovered a garbage bag
containing a large amount of marijuana. Id. The record contained no evidence
of any highway patrol policy on the opening of closed containers found during
inventory searches. Id. at 3. The Court held that absent such a policy, the
search was not sufficiently regulated to satisfy the Fourth Amendment, and,
therefore, the marijuana was properly suppressed.               Id. at 5.     The Court
reiterated, however, that “‘nothing . . . prohibits the exercise of police discretion
so long as that discretion is exercised according to standard criteria and on the
basis of something other than suspicion of evidence of criminal activity.’” Id. at
3-4 (quoting Bertine, 479 U.S. at 375).
      In 1994, this court decided Andrews,2 involving a police officer who
conducted a routine inventory search of Andrews’s vehicle, found a red spiral
notebook, and searched the notebook page-by-page for relevant information. 22
F.3d at 1332. Uncontradicted testimony at trial established that the police
department required its officers to conduct inventory searches, including the
completion of inventory forms, for the purpose of protecting the city from claims
of lost property. Id. at 1335. Based on this evidence, we upheld the inventory
search as constitutional. Id. at 1333-37. We found that opening a notebook to


       2
         Foots argues in his reply brief that Andrews and Como predate Wells, and therefore
to the extent they conflict with Wells, they have been overruled. Neither Andrews nor Como
predate Wells. The Supreme Court decided Wells in 1990, and the Fifth Circuit decided
Andrews and Como in 1994 and 1995, respectively. In fact, Andrews and Como not only cite
to but also discuss at length the Supreme Court’s decision in Wells.

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                             Nos. 08-11057, 08-11084

determine whether valuables might be found between its pages was consistent
with the police department’s policy requiring an inventory search to protect the
city from claims of lost property. Id. at 1333-37. Furthermore, the policy’s
purpose of protecting the city “sufficiently regulate[d] the discretion of its officers
to prevent them from turning inventory searches into ‘a purposeful and general
means of discovering evidence of a crime.’” Id. at 1336 (quoting Wells, 495 U.S.
at 4). We explained that Wells does not require a law enforcement agency’s
inventory policy to address specifically the steps that an officer should take upon
encountering a closed container. Id. Rather, “[t]he requirement to be distilled
from the line of cases culminating in Wells is that inventory policies must be
adopted which sufficiently limit the discretion of law enforcement officers to
prevent inventory searches from becoming evidentiary searches.” Id. at 1336.
      Our decision in Como reaffirmed the principles articulated in Wells. In
Como, this court upheld an inventory search as constitutional where trial
testimony established that it was the sheriff’s department’s established
procedure to inventory a vehicle for the purpose of “safekeeping” whenever a
vehicle was separated from its driver; that these procedures gave the officers
discretion to decide whether a locked container should be opened or whether to
search the locked trunk of the vehicle; that the arresting deputy followed these
procedures in conducting the inventory search at issue; and that he was not
looking for evidence, but was instead attempting to locate, record, and secure
personal valuables. 53 F.3d at 92. This evidence was sufficient to meet the
“Andrews requirement.” Id. at 92.
      Turning to the present case, the district court did not clearly err in finding
that the inventory search was conducted in accordance with standardized
procedures. At the suppression hearing, Nunez gave unrebutted testimony that
it is the Culberson County Sheriff’s policy “to initiate an inventory search once
you are arresting the sole occupant of a vehicle,” that he conducted the inventory

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search pursuant to this policy, that the policy requires “inventorying the
subject’s property entirely” in order to find and catalog everything, and that the
purpose of performing an inventory search is “to protect [the arrestee’s] property
or protect you, as an officer [ ], from any property being stolen or misplaced or
taken from a vehicle.” See United States v. Lage, 183 F.3d 374, 380-81 (5th Cir.
1999) (holding that an inventory search was performed in accordance with
standardized procedures where the officer gave unchallenged testimony that
post-arrest inventory searches are routine and performed for “liability
purposes”).
      Moreover, because the evidence showed that the inventory search was
conducted pursuant to a standardized procedure appropriately limited by a
policy of safekeeping, Foots’s Fourth Amendment rights were not violated. This
difference from the evidence in Judge is critical to the outcome. There was no
evidence in Judge – as there is here, and as there was in Andrews and Como –
that the policy had a proper purpose (i.e. safekeeping), or that the search was in
fact performed pursuant to the policy and limited by the policy’s purpose. 846
F.2d at 276. Neither Andrews nor Como required a specific policy provision
expressly requiring that all closed containers be opened during an inventory
search. It was enough that the opening of closed containers was permissible
under the inventory search policy and that an officer’s discretion in determining
whether to open a closed container was limited by the purpose of safekeeping.
The same reasoning justifies the inventory search of Foots’s Mercedes.
      At bottom, we find no reversible error in the district court’s denial of
Foots’s motion to suppress.
B.    Motion for Judgment of Acquittal
      Foots argues that the district court erred by denying his motion for
acquittal on Count 2 of the indictment because the Government did not present
sufficient evidence to support an element of his conviction beyond a reasonable

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doubt. Specifically, Foots contends that the Government failed to establish that
the guns used in the armed robbery were real firearms as opposed to toys.
      Where a sufficiency argument is raised in a timely motion for judgment of
acquittal, we “examin[e] the evidence and all reasonable inferences drawn
therefrom in the light most favorable to the verdict, and ask[ ] whether a
rational trier of fact could have found guilt beyond a reasonable doubt.” United
States v. Garcia, 567 F.3d 721, 731 (5th Cir. 2009). “‘It is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, provided a reasonable
trier of fact could find that the evidence establishes guilt beyond a reasonable
doubt.’” Id. (quoting United States v. Bell, 678 F.2d 547, 549 & n.3 (5th Cir. Unit
B 1982) (en banc)). “‘A jury is free to choose among reasonable constructions of
the evidence.’” Id. (quoting Bell, 678 F.2d at 549).
      In United States v. Lankford, 196 F.3d 563 (5th Cir. 1999), this court
addressed what constitutes sufficient evidence to establish that a real firearm
was used in the commission of a crime. Id. at 576. Like Foots, Lankford was
convicted of, among other things, violating § 924(c).           Id.   At trial, the
Government did not admit an actual gun into evidence, and the victim testified
that she did not know whether the weapon Lankford was carrying was in fact a
“real” gun. Id. Nonetheless, this court held that a sufficient basis for a jury
finding that Lankford used or carried a firearm existed. Id. “The Government
is not required to produce the actual weapon allegedly used, possessed, or
carried and may rely on . . . the testimony of lay witnesses[ ] in its attempt to
prove that a defendant used, possessed or carried a ‘firearm’ as that term is
defined for purposes of § 924(c).” Id. (citing 18 U.S.C. § 921(a)(3)). While the
victim testified that she did not “know” if the gun was real, she also testified that
she believed the gun was real, and this was sufficient evidence from which the
jury could have drawn the same conclusion. Id.

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      Here, as in Lankford, the Government presented sufficient evidence from
which a reasonable jury could have found the guns used in the robbery were real.
Although the Government did not admit an actual gun into evidence, and Lopez
testified at trial that he did not know much about guns, Lopez also testified that
the guns appeared real to him. Indeed, the guns appeared so real that his
reaction was to tell the robbers to take the money, run away, and call 911.
Under Lankford, this testimony was sufficient evidence from which the jury
could have reached the same conclusion as Lopez – that the gun was real.
Accordingly, the district court properly denied Foots’s motion for judgment of
acquittal.
C.    Sentencing
      Foots’s final contention on appeal is that his sentence was unreasonable.
According to Foots, the district court erred in two respects: (1) by failing to
determine his sentence for the § 924(c) conviction independently from his
sentence for the § 1951 conviction, and (2) by ignoring Congress’s decision to cap
a defendant’s sentence for § 1951 offenses at 240 months’ imprisonment.
      As Foots concedes, because he did not object to the reasonableness of his
sentence in the district court, we review the district court’s sentence for plain
error only. United States v. Dunigan, 555 F.3d 501, 506 (5th Cir.), cert. denied,
129 S. Ct. 2450 (2009). Under this standard, Foots must show an error that is
plain and that affected his substantial rights. United States v. Jackson, 559 F.3d
368, 372 (5th Cir. 2009). Even if Foots makes this showing, whether to correct
the error is a decision within the sound discretion of this court, and we will not
exercise that discretion unless the error “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” United States v. Peltier, 505 F.3d
389, 392 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008) (internal quotation
marks and citation omitted).



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      To determine whether a district court’s sentence was reasonable, we
engage in a bifurcated analysis. United States v. Herrera-Garduno, 519 F.3d
526, 529 (5th Cir. 2008). First, we ask whether the district court committed
procedural error. Id. Second, we consider the substantive reasonableness of the
sentence imposed. Id.
      We hold that Foots’s sentence was not unreasonable. As to the procedural
prong of our analysis, section 924(c)(1)(A) requires that a consecutive sentence
be imposed in addition to the punishment for the crime of violence at issue;
section 5G1.2(a) of the Sentencing Guidelines provides that “the sentence to be
imposed on a count for which the statute . . . requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment, [see, e.g., § 924(c)] shall be determined by that statute and
imposed independently.” The district court adopted the presentence report
(which calculated separately the advisory imprisonment ranges for the two
counts), calculated separately the advisory ranges for the two counts again
during the sentencing hearing, and imposed two separate sentences – 240
months’ imprisonment on Count 1, 110 months’ imprisonment on Count 2.
Although we understand Foots’s concerns with the district court’s initial (and
quickly corrected) mistaken pronouncement of his sentence at the sentencing
hearing, given the applicable standard of review, we cannot conclude that the
error was plain error.
      Turning to the issue of substantive reasonableness, the statutory
maximum for persons convicted under § 1951 is twenty years’ imprisonment “on
that charge.”   18 U.S.C. § 1951.    Foots was sentenced to the twenty-year
maximum for his § 1951 conviction. Under both § 924 and the Sentencing
Guidelines, Foots’s accompanying sentence for his § 924(c) conviction had to be,
and was, determined separately and imposed independently from his § 1951
sentence. Although the district court imposed an upward variance on both

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counts, it thoroughly explained its reasons for doing so. Thus, on this record and
under a plain error standard of review, Foots’s sentence was not substantively
unreasonable.
      Accordingly, the district court’s judgment is AFFIRMED.




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