IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20194 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAMIONE KIMONE BLACKMON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-851-1 -------------------- January 8, 2003

Before REAVLEY, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Damione Kimone Blackmon appeals his conviction for being a

felon in possession of a firearm in violation of

(g)(1) and

(a)(2). Blackmon contends that

the district court erred in denying his motion to suppress

evidence seized from his bedroom, because the warrant that

authorized the search of the bedroom was based on illegally

obtained evidence. He also argues that

(g)(1) is

unconstitutional.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20194 -2-

“This circuit’s standard of review for a motion to suppress

based on live testimony at a suppression hearing is to accept the

trial court’s factual findings unless clearly erroneous or

influenced by an incorrect view of the law.” United States v.

Alvarez,

(5th Cir. 1993). Questions of law,

including ultimate conclusions of Fourth Amendment

reasonableness, are reviewed de novo. United States v. Paige,

(5th Cir. 1998). Evidence is viewed in the

light most favorable to the prevailing party.

When the

Government justifies a warrantless search on the theory that

consent was lawfully obtained from a third party, rather than

from the person whose property was searched or seized, the

Government must prove that the third party had either actual or

apparent authority to consent. United States v. Gonzales,

(5th Cir. 1997).

The record reflects that Blackmon’s uncle had actual

authority or, at a minimum, apparent authority to consent to the

search. Blackmon’s uncle owned the house where Blackmon resided.

Blackmon did not pay rent. Blackmon’s uncle had access to all

areas of the house, except Blackmon’s bedroom. The areas that

were searched based solely on the uncle’s consent were open and

accessible to Blackmon’s uncle as well as anyone who entered the

premises. Blackmon had not limited his uncle’s access to those

areas, and he knew that his uncle routinely cleaned one of the

areas in question. It was reasonable to recognize that either No. 02-20194 -3-

Blackmon or his uncle had the right to permit inspection of the

property and that Blackmon had assumed the risk that his uncle

would permit a search. Accordingly, the district court did not

commit error when it denied the motion to suppress. See United

States v. Rizk,

(5th Cir. 1988). Based on

the foregoing, we need not consider Blackmon’s argument that

evidence seized from the bedroom should be suppressed, since this

argument is premised upon a reversal of the district court’s

suppression ruling.

Blackmon contends that this court should reconsider its

jurisprudence regarding the constitutionality of

(g)(1) in light of United States v. Lopez,

(1995). Blackmon’s arguments are foreclosed by this court’s

precedent. See United States v. Daugherty,

(5th Cir. 2001), cert. denied,

(2002).

The judgment of the district court is AFFIRMED.