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

                                                FILED
                                                                 June 23, 2009
                                No. 08-50759
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JASON MITCHELL

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:07-CR-66-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Jason Mitchell appeals his conviction and 60-month sentence following his
conditional guilty plea conviction for conspiracy to manufacture and
manufacturing of marijuana.
      Mitchell first avers that the district court erred by denying his motion to
suppress evidence seized from a rental unit leased by a co-defendant for the
purpose of growing marijuana. He contends that the district court erred in



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-50759

determining that he did not have standing to challenge the search of the rental
unit, and in holding that the canine sniff at the front door of that rental unit did
not constitute an impermissible warrantless search. Even if we assume that the
district court erred in both of those respects, Mitchell’s appeal of the denial of his
motion to suppress fails because he has abandoned, by failing to brief, any
argument challenging the district court’s alternative holding that the good faith
exception to the exclusionary rule applied because the warrant that was issued
for the rental unit was not issued on the basis of the canine sniff alone.        See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, the district
court’s denial of Mitchell’s motion to suppress based on the good faith exception
is affirmed.
      Mitchell also contends that the district court clearly erred by increasing
his offense level by two levels under U.S.S.G. § 2D1.1(b)(1), based on a firearm
found in the rental unit. The adjustment under § 2D1.1(b)(1) should be applied
if the weapon was present unless it is clearly improbable that the weapon was
connected with the offense. § 2D1.1(b)(1), comment. (n.3); United States v.
Mitchell, 31 F.3d 271, 277 (5th Cir. 1994).
      The record reflected that the firearm was present, in plain view, in the
same room of the rental unit where marijuana was being cultivated. Given the
proximity of the firearm to the marijuana, it was not clearly improbable that the
firearm was connected with the offense. See id.; United States v. Hooten, 942
F.2d 878, 882 (5th Cir. 1991).
      AFFIRMED.




                                          2
