UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 97-40174 Summary Calendar _______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHERRIC DESHAWN GUESS, also known as Shawn Guess, also known as Baby G,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (4:96-CR-38-1) _________________________________________________________________ December 11, 1997

Before JONES, SMITH, and STEWART, Circuit Judges.

PER CURIAM:*

Appellant Sherric Deshawn Guess appeals his convictions

after a jury trial for three counts of possession of cocaine base

with intent to distribute in violation of

(a) and

two counts of being a felon in possession of a firearm in violation

of

(g). Finding no reversible error, we affirm.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. BACKGROUND

Guess’s appeal centers on one issue: the fact that the

notes and transcript of his suppression hearing have been lost.

Prior to trial, Guess moved to suppress evidence found and seized

at various times reflected in his five-count indictment. On

September 18, 1996, the district court held a hearing and denied

the motion in all respects. It is undisputed that the court

reporter responsible for transcribing the hearing lost his notes as

well as the recording and that the hearing has never been

transcribed.1

Approximately two weeks later, the case proceeded to

trial. The evidence presented at trial established that on

February 10, 1995, shortly after having served prison time for

possession of cocaine with intent to deliver and aggravated sexual

assault on a female child under 14 years of age, Guess was present

at an apartment when Sherman, Texas police officers executed a

search warrant; the apartment was being rented by a Mr. Jimmy Nash.

Guess was found in one of the bedrooms on a couch, sitting on a

.380 semiautomatic pistol. The search warrant permitted the

officers to look for cocaine, which they found in a bedroom closet.

Both Guess and Nash were arrested incident to this search.

On October 7, 1995, Sherman patrol officer Ken Brooks and

his partner were in a squad car in a high-crime, high-drug

neighborhood when they spotted a Cadillac El Dorado with a rear

1 Although it is true that the notes and transcript of this hearing have not been located, the record does contain the minutes of this hearing. See

.

2 window broken out. Inside the car was a female who stepped out of

the car to talk to the officers. Shortly thereafter, Guess walked

up. Although appearing to be nervous and mildly intoxicated, Guess

told them he owned the car and gave the officers permission to

search it, admitting that a .380 pistol was inside. Upon searching

the car, the officers discovered the gun. The officers did not

arrest Guess at this time, but did file a report.

On March 5, 1996, Denison, Texas police officer Carroll

Spaugh gave chase to a speeding car. The driver jumped from the

car while it was still moving and ran into the woods beside the

road. At that time, Spaugh noticed that the man was carrying a tan

plastic grocery-type bag. Because the car was still moving and was

without a driver, Spaugh chased the car and managed to stop it.

After radioing for assistance, Spaugh looked inside the car for

registration or insurance papers, but only found two plastic

baggies containing crack cocaine. Another officer, Rollins, went

into the woods to search for the fleeing man and, at a distance,

briefly spotted a man fitting the description provided by Spaugh.

Shortly thereafter, Rollins found the man, lying down in the woods.

The man whom Rollins arrested for evading arrest was Guess. Guess

was not carrying either a firearm or drugs at that time. However,

another officer who had also been in pursuit of Guess at this time

found two grocery bags -- one blue and one tan -- hanging from a

tree in the woods. Inside the bags were small jars and plastic

baggies containing cocaine. Guess was charged with state charges

3 of possession of a controlled substance with intent to deliver and

evading arrest; he made bond and was released.

On July 19, 1996, Sherman officer Jeff Jones, acting on

a tip from a confidential informant (“CI”) that Guess was bringing

crack cocaine to Sherman, stopped Guess’s car as it was returning

to Sherman from Dallas. The officer arrested Guess on outstanding

warrants and conducted an inventory search of the car. Although

there was a strong odor of burning marijuana in the car at that

time, Jones was unable to find drugs in the car other than

marijuana in the ashtray. The car was impounded. Three days later

Officer Brad Gibson obtained a search warrant and conducted a

search of the car. At that time, he found a baggie containing

crack cocaine between the center console and front passenger seat.

Also, on July 19, 1996, officers had obtained warrants to search

for cocaine at two residences associated with Guess. Cocaine was

found hidden inside a pool table in one of the residences.

In connection with these four incidents, the authorities

seized a total of 230.26 grams of crack cocaine.

After a trial, a federal jury found Guess guilty of all

five counts of a superseding indictment: three counts of

possession of cocaine base with intent to distribute (Counts 1, 2,

and 3, relating to incidents on February 10, 1995, March 5, 1996,

and July 19, 1996, respectively) and two counts of possession of a

firearm by a felon (Counts 4 and 5, relating to the incidents on

February 10, 1995 and October 7, 1995, respectively). The district

4 court sentenced Guess to 360 months in prison as to the first three

counts and 60 months as to Counts 4 and 5, all to be served

concurrently. He was also sentenced to a 10-year term of

supervised release as to Count 1, eight years as to Count 3, and

three years as to Counts 4 and 5, with the terms to run

concurrently.

Guess timely filed a notice of appeal. Subsequently, the

clerk’s office granted an unopposed motion by Guess’s trial

counsel, Barrett K. Brown, to withdraw from the case. Substitute

appellate counsel, Garland Caldwell, was appointed for Guess and

currently represents him on this appeal.

DISCUSSION

Guess contends that he is entitled to a new trial because

he is now represented by an attorney who did not represent him at

trial and the testimony from the hearing on Guess’s motion to

suppress is not available. Citing United States v. Selva,

(5th Cir. 1977) (“Selva II”), Guess contends that the

suppression-hearing transcript is a “significant and substantial

portion of the record” which “can make or break the government’s

case” and the absence of which has a “limitless prejudicial effect”

on him. He argues that he is entitled to a new trial under FED. R.

APP. P. 10(c).

Pursuant to

(b) of the Court Reporter Act

(“CRA”), a reporter “shall . . . record[ ] verbatim by shorthand,

mechanical means, electronic sound recording, or any other method

. . . (1) all proceedings in criminal cases had in open court.”

5 Failure to comply with the CRA is not error per se but the

defendant-appellant must ordinarily show that the reporter’s

failure to record a portion of the proceedings “visits a hardship

upon him and prejudices his appeal.” Selva II,

(citations omitted). However, “[w]hen . . . a criminal defendant

is represented on appeal by counsel other than the attorney at

trial, the absence of a substantial and significant portion of the

record, even absent any showing of specific prejudice or error, is

sufficient to mandate reversal.”

.

However, not all failures to record “will work a

reversal.”

at 1306 n.5. This court has held that missing

transcripts of nine bench conferences in a transcript exceeding

3,000 pages were not a substantial and significant portion of the

record under Selva II. See United States v. Aubin,

(5th Cir. 1996), cert. denied,

(1997); see also

United States v. Neal,

(5th Cir. 1994)

(allegedly missing portions of the record were deemed not

significant). Moreover, “there may be some instances where it can

readily be determined from the balance of the record whether an

error has been made during the untranscribed portion of the

proceedings.” Selva II,

. In determining whether

the missing suppression hearing transcript in Guess’s case is a

substantial and significant proceeding, we note that, in reviewing

district court factfindings relating to the denial of a motion to

suppress, this court reviews “evidence at both the suppression

hearing and trial” in the light most favorable to the prevailing

6 party. United States v. Hope,

(5th Cir. 1996)

(emphasis added) (footnotes and citations omitted).

After a complete review of the record, we agree with the

Government that when the record is viewed as a whole, the absence

of the transcript of the suppression hearing is neither substantial

nor significant. The minutes of the suppression hearing indicate

that six of the seven witnesses that testified at the suppression

hearing testified at Guess’s trial as well. There has been no

claim that these witnesses’ testimony at trial differed from their

testimony at the hearing. Moreover, the minutes of the hearing

reflect that the court ruled that (1) Guess did not have standing

to suppress evidence found in Nash’s apartment, (2) regarding the

March 5, 1996 search of the car, the Denison officer had good cause

to search the car, (3) Guess’s motion to suppress items found in

the vehicle after he abandoned the car was overruled, and (4) there

was probable cause for the search incident to Guess’s final arrest.

The court then denied Guess’s motion to suppress in all respects.

Additionally, the trial transcript in this case contains

considerable testimony regarding the various arrests, searches, and

seizures involving Guess. We ascertain no error. This information

is substantial enough that the transcript of the suppression

hearing itself is not a “substantial and significant” proceeding

whose absence warrants reversal.

Although complete trial and sentencing transcripts are

included in the record, Guess also claims that the “incomplete”

record in this case prevents him from discerning whether further

7 points of error are necessary in his case. Accordingly, he urges

this court to permit him time to file a supplemental brief at a

later date. Because Guess could have raised all issues relating to

his trial and sentencing at the time of this appeal, Guess’s

request to file a supplemental brief is DENIED.

CONCLUSION

For the foregoing reasons, we AFFIRM Guess’s conviction

and DENY his request to file a supplemental brief.

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