107 F3d 876 United States v. Hicks

107 F.3d 876

UNITED STATES of America, Appellee,
James Edward HICKS, Appellant.

No. 96-1580.

United States Court of Appeals, Eighth Circuit.

Submitted Feb. 5, 1997.
Filed Feb. 7, 1997.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.


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James Hicks appeals his conviction and 112-month sentence imposed by the district court1 following his conditional guilty plea to possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. We affirm.


Hicks argues that the district court erred in denying his motion to suppress the shotgun found in his car at the time of his arrest. We conclude the district court did not clearly err, as the evidence in the record shows the officers had probable cause to arrest Hicks; thus, the contemporaneous search of the car was valid as a search incident to arrest and as an inventory search. See United States v. Clapp, 46 F.3d 795, 799 (8th Cir.1995) (standard of review); United States v. Cummins, 920 F.2d 498, 502 (8th Cir.1990), cert. denied, 502 U.S. 962 (1991).


Hicks also argues that the district court erred in denying his request for a downward departure under U.S. Sentencing Guidelines Manual § 4A1.3 (1995) (over-represented criminal history). Hicks has not shown nor does the record indicate that the district court was unaware of its authority to depart from the Guidelines range. Consequently, we cannot review the district court's discretionary refusal to depart. See United States v. Elkins, 16 F.3d 952, 954 (8th Cir.1994).


Finally, we reject Hicks's challenge to the constitutionality of section 5861(d). See United States v. Aiken, 974 F.2d 446, 448-49 (4th Cir.1992); United States v. Parker, 960 F.2d 498, 500 (5th Cir.1992); see also United States v. Hale, 978 F.2d 1016, 1018 (8th Cir.1992), cert. denied, 507 U.S. 997 (1993).


Accordingly, we affirm.


The HONORABLE WILLIAM R. WILSON, JR., United States District Judge for the Eastern District of Arkansas