                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 18, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-41609
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WILLIAM JOHN CHAPPELL,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                      USDC No. 4:03-CR-41-ALL
                        --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     William John Chappell appeals his conditional guilty-plea

conviction and sentence for being a felon in possession of a

firearm.   Chappell argues that the district court erred in

denying his motion to suppress evidence seized from his garage.

Although Chappell concedes that he had no expectation of privacy

since his garage door was open, he contends that the seizure of

evidence therefrom, which was in plain view, was improper since

officers were not authorized to enter the garage without a

     *
        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that this opinion should not be published and is not precedent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.
                            No. 03-41609
                                 -2-

warrant.   Chappell argues that, to the extent state law

authorized the officers’ entry into his garage, the applicable

provisions of the Texas Transportation Code (TTC) violate the

Fourth Amendment.

     Regardless of Chappell’s challenge to the TTC, the exigent

circumstances created by Chappell by leaving his garage door open

and a firearm in plain view justified the officers’ entry into

his garage.   See United States v. Jones, 239 F.3d 716, 719-22

(5th Cir. 2001).    Accordingly, the district court did not err in

denying Chappell’s motion to suppress.     See United States v.

Alvarez, 6 F.3d 287, 289 (5th Cir. 1993).

     Chappell also renews his challenge to the presentence

report’s six-level increase pursuant to U.S.S.G.

§ 2K2.1(b)(1)(C), arguing that one of the 25 firearms recovered

from his residence belonged to his father-in-law.    When

overruling Chappell’s objection to the U.S.S.G. § 2K2.1(b)(1)(C)

enhancement, the district court rejected as incredible Chappell’s

argument that he lacked knowledge of the firearm.    A credibility

determination on a factual finding at sentencing is peculiarly

within the province of the trier-of-fact.     See United States v.

Sotelo, 97 F.3d 782, 799 (5th Cir. 1996).

      For the first time in a FED. R. APP. P. 28(j) letter,

Chappell contends that, pursuant to Blakely v. Washington, 124

S. Ct. 2531 (2004), his offense level increases under U.S.S.G.

§§ 2K2.1(b)(1)(C) and 2K2.1(b)(4) were improper since the facts
                          No. 03-41609
                               -3-

supporting these enhancements were not submitted to a jury and

proven beyond a reasonable doubt.   Chappell acknowledges that

this argument is foreclosed by United States v. Pineiro, 377 F.3d

464, 473 (5th Cir. 2004), petition for cert. filed (U.S. July 14,

2004) (No. 03-30437), and he raises the issue solely to preserve

it for future review.

     AFFIRMED.
