     Case: 11-10503     Document: 00511811319         Page: 1     Date Filed: 04/04/2012




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

                                                                            FILED
                                                                            April 4, 2012
                                     No. 11-10503
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RANDALL LADON CURRY,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:09-CR-53-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Randall Ladon Curry appeals his conditional guilty plea conviction of
being a felon in possession of a firearm. He contends that the district court erred
in denying his motion to suppress the evidence seized from his vehicle following
a traffic stop. He argues that the police officers did not have probable cause to
stop his vehicle or to search its contents. Also, for the first time on appeal, he
argues that the officers did not have probable cause to seize a firearm found in
plain view because its incriminating nature was not immediately apparent.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10503    Document: 00511811319       Page: 2    Date Filed: 04/04/2012

                                   No. 11-10503

      When a district court denies a motion to suppress, we review its
conclusions of law de novo and its findings of facts, including credibility
determinations, for clear error, viewing the evidence in the light most favorable
to the government. United States v. Montes, 602 F.3d 381, 384-85 (5th Cir.), cert.
denied, 131 S. Ct. 177 (2010). We review arguments not raised during the
suppression inquiry in the district court at most for plain error. United States
v. Baker, 538 F.3d 324, 328-29 & n.1 (5th Cir. 2008).
      The police officers who stopped Curry testified that they initiated the
encounter after Curry committed a traffic violation and conducted a search
because they smelled marijuana as they approached the vehicle. The district
court did not clearly err in crediting their testimony over Curry’s contrary
statements or in err in determining that their statements proved probable cause
to justify the stop and subsequent search. See Whren v. United States, 517 U.S.
806, 810 (1996); United States v. McSween, 53 F.3d 684, 687 (5th Cir. 1995).
Curry’s argument that the police lacked probable cause to seize his pistol lacks
merit and does not establish error, much less plain error. See Baker, 538 F.3d
at 328-29 & n.1.
      Curry also argues that the district court erred by ordering that his
sentence run consecutively to a yet-to-be imposed state sentence.              Curry
concedes that, at the time this appeal was filed, that argument was foreclosed
by our decision in United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.
1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-
73 (5th Cir. 2006). The Supreme Court has now reached the same conclusion.
Setser v. United States, No. 10-7387, --- S. Ct. ----, 2012 WL 1019970 (Mar. 28,
2012) (holding that it is within a district court’s discretion to order that a federal
sentence run consecutively to an anticipated state court sentence that has not
yet been imposed). Accordingly, Curry’s argument lacks merit.
      AFFIRMED.



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