IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10270 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOREY TREVOY JOHNSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-325-1-L -------------------- April 11, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Torey Trevoy Johnson entered a conditional guilty plea to

one count of possession of an unregistered firearm. He reserved

the right to appeal the district court's denial of the motion to

suppress. We review the district court's findings of fact for

clear error and the conclusion as to the constitutionality of the

law enforcement action de novo. Ornelas v. United States,

(1996). We will not second-guess the district

court's findings as to the credibility of witnesses. United

States v. Garza,

(5th Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-10270 -2-

It is not necessary to determine whether the district court

erred in its finding that Johnson consented to the initial entry

into the apartment because that entry was justified by probable

cause. Johnson concedes that the officers could have arrested

him and searched the immediate area because they had probable

cause to believe that a crime was being committed when he opened

the door and the officers smelled burning marijuana. See United

States v. Ramirez,

(5th Cir. 1998).

Johnson argues that the district court was clearly erroneous

in its finding that he consented to a search of the entire

apartment. Given the required deference to the district court's

credibility determination and the totality of the circumstances

shown by the officers' testimony, the district court did not

clearly err in its factual findings that Johnson voluntarily

consented to the search of his apartment. The district court did

not err in denying the motion to suppress the results of the

search. See United States v. Cooper,

(5th

Cir. 1995); United States v. Morales,

(5th

Cir. 1999).

Johnson’s motion to submit nonconforming record excerpts is

GRANTED.

AFFIRMED; MOTION GRANTED.