United States v. Williams, 30743.

• Decision Date: 17 June 1971
• Docket Number: No. 30743.,30743.
• Citation: 446 F.2d 486
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tom Willie WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

446 F.2d 486 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Tom Willie WILLIAMS, Defendant-Appellant.

No. 30743.

United States Court of Appeals, Fifth Circuit.

June 17, 1971.

Vernon Coe, Court appointed, Dallas, Tex., Thompson, Coe, Cousins, Irons & Porter, Dallas, Tex., for defendant-appellant, Tom Willie Williams.

Eldon B. Mahon, U. S. Atty., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., James F. Gaulding, Dallas, Tex., Asst. Regional Counsel, Internal Revenue Service, Cecil Emerson, Asst. U. S. Atty., Harry H. Ellis, Sr. Atty., Office of the Regional Counsel, Internal Revenue Service, for plaintiff-appellee.

Before AINSWORTH, INGRAHAM and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

This appeal is from a judgment of conviction for unlawful possession of a firearm in violation of Title 26 U.S.C. §§ 5861(d) and 5871. Appellant, Tom Willie Williams, raises several legal issues on appeal, all of which have been previously considered by the Supreme Court or this Court and have been found to be without merit.

Appellant first contends that the statutes under which he is charged are violative of his right to bear arms as guaranteed by the Second Amendment to the Constitution. This identical question was answered adversely to appellant's contention in United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939), and in this Court's recent decision, United States v. Johnson, 5 Cir., 1971, 441 F.2d 1134.

Appellant next contends that the search of the vehicle and seizure of the firearm were in violation of his Fourth Amendment rights. The evidence shows that an automobile operated by appellant's brother, in which appellant was a passenger, was proceeding, on a public street in a reckless and careless manner. The vehicle was alternatively being braked, then accelerated, causing it to bounce. Appellant was leaning from the right front window of the vehicle, yelling obscenities to passersby and waiving his arms. Based on these observations, Officer Hughes, a Dallas, Texas Police Department patrolman, stopped the vehicle to determine whether the occupants were intoxicated. He noticed that appellant attempted to push an object under the seat. After the occupants alighted from the car, Officer Hughes could see the barrel of a shotgun protruding from beneath the seat. Appellant and his brother were then frisked for weapons, after which Officer Hughes returned to the vehicle and seized the loaded sawed-off shotgun. Subsequently, the two men were turned over to federal authorities. Because of the well-established "plain view" doctrine, it is evident that the officer's observation of the weapon did not constitute a search within the intendment of the Fourth Amendment. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968); Ker v. State of California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1634-1635, 10 L.Ed.2d 726 (1963); United States v. Johnson, 5 Cir., 1969, 413 F.2d 1396, 1400, affirmed, en banc, 5 Cir., 1970, 431 F.2d 441; Williams v. United States, 5 Cir., 1968, 404 F.2d 493, 494; Weaver v. United States, 5 Cir., 1967, 374 F.2d 878, 882.

Appellant contends that the length of his sentence — eighteen months — constitutes cruel and unusual punishment in violation of the Eighth Amendment. We are not impressed with the argument that the sentence was disproportionate to the crime for which appellant was convicted. The maximum sentence prescribed by statute for violation of the felony involved is ten years. The sentence imposed was well within the bounds of the statutory provision. Furthermore, it is not within the province of this Court to modify a sentence legally imposed. This is a matter addressed to the sound discretion of the trial court. We find no abuse of that discretion. Zaffarano v. Blackwell, 5 Cir., 1967, 383 F.2d 719, 721; Boerngen v. United States, 5 Cir., 1964, 326 F.2d 326, 329; Sullivan v. United States, 5 Cir., 1963, 317 F.2d 101, 102. See also Newberry v. Beto, 5 Cir., 1969, 406 F.2d 1325, 1326.

Appellant's contention that his privilege against self-incrimination was violated by the registration provisions of the National Firearms Act has been disposed of adversely to appellant by the recent Supreme Court decision in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), and its fast-developing progeny in this Circuit. See United States v. Johnson, 5 Cir., 1971, 441 F.2d 1134; United States v. Coleman, 5 Cir., 1971, 441 F.2d 1132; United States v. Piper, 5 Cir., 1971, 443 F.2d 371; United States v. Miller, 5 Cir., 1971, 441 F.2d 1147; United States v. Beck, 5 Cir., 1971, 443 F.2d 1360.

Appellant next contends that he was denied his constitutional right to a trial by an impartial jury. Appellant, a Negro, was tried by an all-white jury. He concedes — as indeed he must — the propriety of the manner in which the jury venire was...