119 F. App'x 654
5th Cir.
2005

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CALVIN W. PENNYWELL, JR., Defendant-Appellant.

No. 04-30472

United States Court of Appeals, Fifth Circuit

Decided Jan. 10, 2005.

121 Fed. Appx. 654

Josette Louise Cassiere, Assistant U.S. Attorney, James G. Cowles, Jr, Assistant U.S. Attorney, Shreveport, LA, for Plaintiff-Appellee.

Betty Lee Marak, Shreveport, LA, for Defendant-Appellant.

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Calvin W. Pennywell, Jr., entered a conditional guilty plea to possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and possession of firearms in relation to drug trafficking, in violation of 18 U.S.C. § 924(c)(1). He now appeals the district court‘s denial of his suppression motion. He argues that the district court erroneously determined that he voluntarily consented to entry by police into his residence, where they subsequently found firearms, cash, and drugs.

Voluntary consent to a search is an exception to the general rule that warrantless searches are per se invalid. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The Government has the burden of proving by a preponderance of the evidence that consent was given freely and voluntarily. Id. at 222. Such a finding of fact is reviewed for clear error. United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). “Voluntarily” means not coerced by threat or force and not granted only in submission to a claim of lawful authority. Schneckloth, 412 U.S. at 233.

Two police officers testified that Pennywell consented to a request to enter and look around when officers knocked on his door in response to a complaint about narcotics activity and weapons at the residence. Pennywell testified that he responded negatively when police asked if they could enter. We conclude that the district court‘s finding of voluntary consent was not clearly erroneous. See Tompkins, 130 F.3d at 121; see also United States v. Garza, 118 F.3d 278, 283 (5th Cir.1997).

AFFIRMED.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TERRY PIERRE LEBLANC, Defendant-Appellant.

No. 04-30577

United States Court of Appeals, Fifth Circuit

Decided Jan. 10, 2005.

121 Fed. Appx. 654

Summary Calendar.

Howard Cobb Parker, Assistant U.S. Attorney, Camille Ann Domingue, Assistant U.S. Attorney, U.S. Attorney‘s Office Western District of Louisiana, Lafayette, LA, for Plaintiff-Appellee.

Kyle Liney Gideon, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defendant-Appellant.

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Terry Pierre LeBlanc (“LeBlanc“) appeals his 21-month sentence for illegal discharge of pollutants into an area of wetlands without a permit. Leblanc argues that the district court failed to examine several factors that would have warranted a downward departure under U.S.S.G. § 2Q1.3. He further contends that the district court should not have assessed him a criminal history point for his 1989 conviction for possession of marijuana because the sentence imposed for that conviction occurred more than ten years before the November 19, 2002, date of the instant offense as alleged in the indictment. LeBlanc further contends that, pursuant to U.S.S.G. § 4A1.2(b), he should not have been assessed any criminal history points for his 1989 conviction for possession of marijuana and his 1998 conviction for driving while intoxicated because he received suspended sentences for these convictions.

This court has jurisdiction to review a district court‘s denial of a motion for a downward departure only if the district court denied the motion based upon an error of law. See United States v. Buck, 324 F.3d 786, 797 (5th Cir.2003). The record reflects that the district court denied LeBlanc‘s motion to depart after concluding that the departure was not warranted by the facts of the case. As such, this court lacks jurisdiction to review the denial of LeBlanc‘s motion for a downward departure. See Buck, 324 F.3d at 797.

A district court‘s application of the sentencing guidelines is reviewed de novo, and its findings of fact are reviewed for clear error. See United States v. Stevenson, 126 F.3d 662, 664 (5th Cir.1997). The record reflects that the LeBlanc‘s unauthorized operation of the landfill, which began in 1995, was sufficiently connected to the instant offense to constitute relevant conduct for sentencing purposes. See U.S.S.G. § 1B1.3; United States v. Anderson, 174 F.3d 515, 527-28 (5th Cir. 1999). As such, LeBlanc‘s 1989 conviction for possession of marijuana was properly included in the calculation of his criminal history category, since the sentence for that conviction occurred within ten years of the commencement of the instant offense. See U.S.S.G. § 4A1.2.

The record reflects that LeBlanc filed objections to the presentence report arguing that he should not have been assessed criminal history points for his prior convictions for which he received suspended sentences. However, at the sentencing hearing LeBlanc withdrew these objections. Waiver is the intentional relinquishment or abandonment of a known right. United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The withdrawal of an objection constitutes the waiver of the objection by the defendant. United States v. Musquiz, 45 F.3d 927, 931 (5th Cir.1995). As such, LeBlanc‘s argument is unreviewable on appeal.

Accordingly, LeBlanc‘s appeal is DISMISSED in part for lack of jurisdiction and AFFIRMED in part.

Notes

*
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. 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.