                                                                       F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   November 30, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                      No. 05-7100
 CLAYTO N H ENRY FENT,                            (D.C. No. CR -05-07-01-P)
                                                         (E.D. Okla.)
          Defendant-Appellant.



                                OR D ER AND JUDGM ENT *


Before BR ISC OE, B AL DOC K , and BROR BY, Circuit Judges.




      D eputy Randy Hass of the Pittsburgh County Sheriff’s Office discovered a

small amount of methamphetamine, ammunition, and a firearm with a defaced serial

number in Defendant’s truck during the course of an inventory search.           The

Government charged Defendant in a two-count Indictment with Felon in Possession

of a Firearm, 18 U.S.C. § 922(g), and Possession of a Firearm with an O bliterated

Serial Number, 18 U.S.C. § 922(k).         Following the district court’s denial of

D efendant’s motion to suppress, a jury convicted Defendant on both counts. O n



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
appeal, Defendant claims the district court erred in denying his m otion to suppress

evidence found during the search of his vehicle.       Defendant also appeals his

sentence, claiming it violates his Sixth A m endm ent rights as discussed in United

States v. Booker, 543 U.S. 220 (2005). W e review both the district court’s denial of

Defendant’s motion to suppress and its sentencing determination de novo and affirm.

See United States v. Dennison, 410 F.3d 1203, 1207 (10th Cir. 2005); United States

v. Stiger, 413 F.3d 1185, 1191 (10th Cir. 2005).

                                         I.

      During routine traffic patrol, Deputy Hass “clocked” Defendant’s truck going

61 mph in a 45 mph zone. D eputy Hass testified at the suppression hearing that in

addition to his radar reading, his observation of the vehicle led him to conclude

Defendant was traveling at a rate of speed between 60 and 70 miles per hour. During

the traffic stop, Defendant was unable to produce a driver’s license or proof of

insurance. Using Defendant’s date of birth and social security number to search the

database, Deputy Hass discovered Defendant’s driver’s license was suspended.

Deputy Hass arrested Defendant for driving with a suspended license.

      Pursuant to department policy, Deputy Hass impounded Defendant’s truck and

conducted an inventory search. 1 During the course of the inventory search, Deputy

      1
         Defendant’s attempt to challenge the inventory search in his reply brief is
waived because he failed to raise the issue in his opening brief. Gaines-Tabb v.
ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir. 1998). (“[A]rguments
not set forth fully in the opening brief are waived.”); Codner v. United States, 17
                                                                      (continued...)

                                         2
Hass located a black bag containing a small am ount of methamphetamine,

ammunition and a firearm with a defaced serial number. Faced w ith firearm charges,

Defendant filed a motion to suppress evidence found during the inventory search of

his vehicle. The district court referred the matter to a magistrate judge who issued

a w ritten Report and Recommendation (R& R) recommending denial of D efendant’s

motion.   Defendant objected to the R& R, and the district court overruled his

objections and adopted the R& R. The case proceeded to trial where a jury found

Defendant guilty on both counts.

      The court sentenced Defendant to 168 m onths in prison. In calculating his

sentence, the court increased Defendant’s base offense level by four points in

accordance with U.S.S.G. § 2K2.1(b)(5). That section provides for an enhancement

w hen a defendant possesses a firearm in connection with another “felony offense.”

                                         II.

      Defendant claims D eputy H ass did not have reasonable suspicion to stop his

vehicle, and therefore the district court erred in denying his motion to suppress.

Defendant argues D eputy Hass lacked training and experience in handling his radar

gun and thus, reliance on the radar gun’s reading could not create the requisite

reasonable suspicion necessary to stop Defendant. Defendant further argues D eputy

Hass had not calibrated the radar gun in several months, resulting in an unreliable

      1
        (...continued)
F.3d 1331, 1332 n.2 (10th Cir. 1994). (“[W]e will not address issues raised for the
first time in a reply brief.”).

                                         3
reading.

      A traffic stop is valid under the Fourth Amendment, “if the stop is based on

an observed traffic violation or if the police officer has reasonable articulable

suspicion that a traffic or equipment violation has occurred or is occurring.” United

States v. Botero-Ospina, 71 F.3d 783, 788 (10th Cir. 1995) (en banc). “O ur sole

inquiry is whether this particular officer had reasonable suspicion that this particular

motorist violated any one of the multitude of applicable traffic and equipment

regulations of the jurisdiction.” Id. (citation and quotation m arks omitted). W e

have no doubt this standard was satisfied here. Regardless of the amount of training

Deputy Hass received in operating the radar gun, he was able to conclude, just by

observing the vehicle, Defendant was speeding and thus committing a traffic

violation. Such observation is the only requirement for a valid stop under the Fourth

Amendment. See id., 71 F.3d at 787. Furthermore, Defendant offered no testimony

at the suppression hearing concerning how often radar gun calibration is required or

that the radar gun was malfunctioning.           Accordingly, D eputy Hass’s stop of

Defendant’s vehicle complied with the Fourth A m endment, and the district court

properly denied his motion to suppress.

                                          III.

      Defendant also challenges his sentence claiming the addition of four points to

his base offense level contravenes the Supreme C ourt’s holding in United States v.

Booker, 543 U.S. 220 (2005). Sentencing Guideline § 2K2.1(b)(5) provides a four

                                           4
level enhancement to a defendant’s base offense level “if the defendant used or

possessed any firearm or ammunition in connection w ith another felony offense.”

U.S.S.G. § 2K2.1(b)(5).    The district court applied this enhancement, finding

Defendant possessed the firearm in connection with the uncharged felony of

possessing methamphetamine.         On appeal, Defendant argues because the

methamphetamine offense was not submitted to the jury, application of U.S.S.G. §

2K2.1(b)(5) was unconstitutional.     Defendant’s argument is foreclosed by our

precedent.

      In U nited S tates v. M agallanez, 408 F.3d 672, 684-85 (10th Cir. 2005), w e

held even after Booker, facts relevant to sentencing still need only be proved by a

preponderance, as long as the guidelines are considered advisory. See also United

States v. Dalton, 409 F.3d 1247, 1252 (10th Cir. 2005) (“Booker therefore does not

render judicial fact-finding by a preponderance of the evidence per se

unconstitutional. The remedial portion of Booker demonstrates that such fact-finding

is unconstitutional only when it operates to increase a defendant’s sentence

mandatorily.”).   The record supports the district court’s conclusion Defendant

possessed methamphetamine, and the close proximity of the drugs and the gun

established Defendant possessed the firearm “in connection with” the felonious

possession of drugs. U.S.S.G. § 2K2.1(b)(5). As noted by the district court, “the

availability of the gun in such close proximity to the methamphetamine was

sufficient evidence of a connection between the firearm and the possession of

                                         5
methamphetamine, which is a felony offense in the state of O klahoma.” The court

made this finding by a preponderance of the evidence. M ost importantly for Booker

purposes, the sentencing transcript clearly establishes the court applied the

Guidelines in a discretionary fashion. Thus, no Booker error occurred.

      A FFIR ME D.

                                      Entered for the Court,



                                      Bobby R. Baldock
                                      Circuit Judge




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