16 F. App'x 544

8th Cir.

2001

UNITED STATES of America, Appellee, v. Juan Gerardo HERNANDEZ, also known as Chapin, Appellant.

No. 00-3751.

United States Court of Appeals, Eighth Circuit.

Submitted July 27, 2001. Filed July 31, 2001.

259 F.3d 544

whether he physically relinquished property); United States v. Landry, 154 F.3d 897, 899 (8th Cir.1998) (whether abandonment has occurred is determined on basis of objective facts available to investigating officers, not on basis of owner‘s subjective intent), cert. denied, 525 U.S. 1086, 119 S.Ct. 836, 142 L.Ed.2d 692 (1999); United States v. Tugwell, 125 F.3d 600, 602 (8th Cir.1997) (warrantless search of abandoned property is constitutional because any expectation of privacy in item searched is forfeited upon its abandonment), cert. denied, 522 U.S. 1061, 118 S.Ct. 721, 139 L.Ed.2d 661 (1998). Alternatively, because probable cause existed for Price‘s arrest, the search of his jacket was lawful as a search incident to arrest. See United States v. Oakley, 153 F.3d 696, 698 (8th Cir.1998); see also Curd v. City Court of Judsonia, Ark., 141 F.3d 839, 842 (8th Cir.1998) (“Warrantless searches incident to a custodial arrest are ‘justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.‘” (quoting United States v. Edwards, 415 U.S. 800, 802-03, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974))).

Second, the district court correctly determined that Price‘s commercial-burglary conviction constituted a crime of violence, see United States v. Hascall, 76 F.3d 902, 904-06 (8th Cir.) (finding second-degree burglary of commercial building involves conduct that presents serious risk of physical injury to another under U.S.S.G. § 4B1.2, and thus is crime of violence), cert. denied, 519 U.S. 948, 117 S.Ct. 358, 136 L.Ed.2d 250 (1996); see also United States v. Stevens, 149 F.3d 747, 749 (8th Cir.) (holding third-degree burglary of commercial building has potential for episodic violence and is a qualifying offense under U.S.S.G. § 4B1.1), cert. denied, 525 U.S. 1009, 119 S.Ct. 527, 142 L.Ed.2d 437 (1998), and therefore correctly calculated the base offense level under the Guidelines. Accordingly, we affirm the judgment of the district court.

Before HANSEN, FAGG, and BEAM, Circuit Judges.

PER CURIAM.

A jury found Juan Gerardo Hernandez guilty of conspiring to distribute methamphetamine, in violation of 21 U.S.C. § 846, and possessing methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court¹ sentenced him to 168 months imprisonment and 5 years supervised release. Hernandez raises five issues on appeal, each of which we reject.

We conclude that the district court did not err in denying Hernandez‘s motion for judgment of acquittal, as there was sufficient evidence of his guilt, see United States v. James, 172 F.3d 588, 591 (8th Cir.1999) (standard of review); did not clearly err in determining Hernandez‘s drug quantity based on the testimony of the government witnesses, which the court was entitled to believe, see United States v. Milton, 153 F.3d 891, 898 (8th Cir.1998) (standard of review), cert. denied, 525 U.S. 1165, 119 S.Ct. 1082, 143 L.Ed.2d 83 (1999); and did not clearly err in applying an obstruction-of-justice enhancement, having found that Hernandez perjured himself at trial, see United States v. Molina, 172 F.3d 1048, 1058 (8th Cir.) (standard of review), cert. denied, 528 U.S. 893, 120 S.Ct. 221, 145 L.Ed.2d 186 (1999). Finally, the court‘s discretionary decisions not to depart downward from the Guidelines are unreviewable on appeal. See United States v. Lim, 235 F.3d 382, 385 (8th Cir.2000).

Accordingly, we affirm the judgment of the district court.

Notes

The Honorable R.E. Longstaff, Chief Judge, United States District Court for the Southern District of Iowa.