United States Court of Appeals Fifth Circuit F I L E D REVISED NOVEMBER 30, 2006 IN THE UNITED STATES COURT OF APPEALS November 1, 2006 Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 05-50714 __________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARCUS DWAYNE MCCOWAN,

Defendant-Appellant.

___________________________________________________ Appeal from the United States District Court for the Western District of Texas, Midland/Odessa Division No. 7:04-cr-00217-RAJ-ALL ___________________________________________________

Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.

DENNIS, Circuit Judge:

Marcus McCowan was convicted of possession of a

firearm with an obliterated serial number, in violation

of

(k), and sentenced to a term of

imprisonment of 18 months, three years of supervised

1 release and a $100 special assessment. On appeal, he

assigns as error: (1) the refusal of the district court

to suppress statements he made in a post-arrest

interview; (2) the denial by the district court of his

motion for acquittal; (3) the district court’s

classification of him as a “prohibited person” and

consequent increase of his offense level at sentencing;

and (4) the district court’s determination that McCowan

was arrested while under a criminal justice sentence and

the consequent addition of two criminal history points

for sentencing purposes.

Facts

The Odessa Police placed McCowan’s suspected

residence under watch. Detectives Travland and Lane had

seen McCowan, also known as “Chucky,” at the house twice.

On October 13, 2004, based on Travland’s affidavit, they

obtained a search warrant for the house and an arrest

warrant for its occupants. Prior to the execution of the

warrant, Travland, Lane, and narcotics detective Duarte

saw Phidel Love arrive in a car, unlock the door with a

key, enter the house, and remain for twenty minutes.

2 After his exit, the officers detained Love and brought

him back to the house. Upon entering the dwelling in

execution of the warrant, the officers encountered

Heather Wilson, who informed them that McCowan resided

there. The officers found two handguns in the living

room, a .45 caliber handgun found under a couch and a

.380 caliber handgun, with the serial number obliterated,

found underneath a smaller couch, i.e., a love seat.

Beside the .380, approximately six to eight inches away,

was a baggie of marijuana. The law enforcement officials

found ammunition for the .380 in the only bedroom that

appeared to have been used. At this point, the police

outside the house saw McCowan pass by as a passenger in

a car they recognized to be his brother’s. They chased

the car down, returned him to the house, searched him,

and arrested him. They gave him Miranda warnings and

began to question him. He gave them a statement in which

he admitted: (1) he and Love resided at the house; (2)

the handgun in question belonged to his mother; (3) he

kept the handgun at the house for protection; (4) he knew

its serial number had been filed off; (5) he knew that

3 possession of a firearm with an obliterated serial number

was unlawful; and (6) he thought the firearm probably had

been stolen. The detectives also took statements from

Love and Wilson. Detective Duarte testified that their

statements substantially corroborated McCowan’s

confession.

Analysis

1. The Motion to Suppress

McCowan argues that the district court erred in

denying his motion to suppress his post-arrest

statements. He contends that his arrest was illegal

because (1) the arrest warrant was defective; and (2) the

officers lacked probable cause to arrest him without a

warrant. Therefore, he argues that his post-arrest

statements were tainted by the illegality of the arrest.

McCowan did not attack the search warrant or the

officers’ initial entry into the house.

We review motions to suppress under two standards:

(1) we accept the district court’s findings of fact

unless clearly erroneous; and (2) we review the ultimate

constitutionality of the law enforcement action de novo.

4 United States v. Orozco,

(5th Cir.

1999).

We need not address the validity of the arrest

warrant in question. McCowan’s arrest was a lawful

warrantless arrest based upon probable cause. “Probable

cause exists when the totality of the facts and

circumstances within a police officer’s knowledge at the

moment of arrest are sufficient for a reasonable person

to conclude that the suspect had committed or was

committing an offense.” United States v. Ramirez,

(5th Cir. 1998) (citing United States v.

Shugart,

(5th Cir. 1997)). At time of

the arrest, the officers knew that: (1) the warrant

affidavit listed “Chuck” McCowan as a suspect; (2) Marcus

McCowan used and was known by that name; (3) the occupant

Wilson said McCowan lived in the house; (4) the police

had seen McCowan at the house twice before; (5) the

police saw McCowan motoring past the house during the

search; and (6) the search uncovered drugs and a firearm

with an obliterated serial number. The combination of

these facts was sufficient to give the officers probable

5 cause to believe McCowan resided in the house and used it

in connection with drug and handgun related crimes. Thus,

the police had probable cause to arrest him for these

offenses. Consequently, his post-arrest statement

resulted from a lawful, rather than unlawful, arrest.

Accordingly, the district court did not err in denying

McCowan’s motion to suppress his post-arrest statements.

2. The Motion to Acquit

McCowan asserts that the district court erred in

denying his motion for acquittal. He contends that the

evidence is insufficient to support his conviction.

Specifically, he argues that the only evidence linking

him with the altered firearm is his own uncorroborated

confession.

We review denials of motions to acquit de novo.

United States v. Delgado,

(5th Cir.

2001). “The jury's verdict will be affirmed if a

reasonable trier of fact could conclude from the evidence

that the elements of the offense were established beyond

a reasonable doubt.”

When the district court seizes on a confession as the

6 keystone evidence presented, it must ensure there is

sufficient corroborating evidence. Corroborating evidence

is sufficient where it justifies a jury’s inference of

the truth of the confession. United States v. Deville,

(5th Cir. 2002).

To prove a violation under

(k), the

government must show, among other elements, that the

defendant knowingly possessed the firearm.1 United States

v. Johnson,

(5th Cir. 2004).

“Possession may be actual2 or constructive and may be

proved by circumstantial evidence. Constructive

possession is the ownership, dominion or control over an

illegal item itself or dominion or control over the

premises in which the item is found.” United States v.

De Leon,

(5th Cir. 1999) (internal

citation omitted). Proof of constructive possession

requires “some evidence supporting at least a plausible

inference that the defendant had knowledge of and access

1 McCowan does not challenge the sufficiency of the evidence on the other elements of the crime. 2 The parties have not argued that actual possession can be proven. 7 to the weapon or contraband.” United States v. Mergerson,

(5th Cir. 1993) (interpreting

(g)).

The district court found that the following

independent evidence corroborated McCowan’s confession:

(1) Detective Duarte testified that Wilson’s and Love’s

statements “pretty much matched” McCowan’s, identifying

him as the principal occupant of the house; (2) police

saw McCowan at the house twice before the warrant was

executed; and (3) officers outside the house saw McCowan

motoring past the house during the search. Additionally,

items of evidence not alluded to by the district court

further corroborated the confession. These include: (1)

the fact that only the living room and one bedroom showed

signs of occupation and that an officer stated that the

house looked recently moved into, which confirms

McCowan’s statements of the same; and (2) the appearance

of the personal effects in only one bedroom confirmed

McCowan’s statement that he lived in that room and owned

the gun. Taking all this evidence together, the

confession is substantially corroborated, i.e., the

8 evidence supports the inference that McCowan “had

knowledge of and access to” the gun in question.

3. Classification as an Unlawful User of Marijuana in Possession of a Firearm

The district court classified McCowan as a

“prohibited person” because he was an “unlawful user of

a controlled substance.” See United States Sentencing

Guidelines Manual § 2k2.1(a)(6), cmt. 3. Based on this

classification, the court increased his offense level at

sentencing. McCowan, however, asserts that there is no

evidence that he possessed the marijuana and the firearm

simultaneously.

This court reviews the district court’s

interpretation and application of the Guidelines de novo;

factual findings are reviewed for clear error. United

States v. Villanueva,

(5th Cir.

2005).

We find no error in the district court’s

determination that McCowan qualified as a prohibited

person because he was an unlawful user of a controlled

substance. As explained by this court in United States 9 v. Patterson,

(5th Cir. 2005), when

interpreting the term “unlawful user,” circuit courts

typically discuss contemporaneousness and regularity.

In Patterson, the defendant appealed his conviction,

contending the trial court erred in its jury instructions

regarding “unlawful users.” Specifically, in his appeal,

Patterson complained of the inference instruction

advocated by the government and requested instead the

definition adopted by the Fifth Circuit in United States

v. Herrera (Herrera I).3 In Herrera I, the court defined

“unlawful user” as “one who uses narcotics so frequently

and in such quantities as to lose the power of self-

control and thereby pose a danger to the public morals,

health, safety, or welfare. In other words, an ‘unlawful

user’ is one whose use of narcotics falls just short of

addiction.” Id. at 323-24. The Patterson court rejected

the Herrera I definition adopted by the district court,

explaining, “The Herrera I standard employed by the

district court was rejected by this court in Herrera II,

[

(5th Cir. 2002)].” Id. at 838. The court

3

(5th Cir. 2002). 10 then turned to the inference instruction. The source of

the inference instruction is found in the regulation

implementing

(g)(3), namely

. That regulation provides:

Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. Such use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct. A person may be an unlawful current user of a controlled substance even though the substance is not being used at the precise time the person seeks to acquire a firearm or receives or possesses a firearm. An inference of current use may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the present time, e.g., a conviction for use or possession of a controlled substance within the past year; multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or persons found through a drug test to use a controlled substance unlawfully, provided that the test was administered within the past year....

. The Patterson court discussed the

arguments of Herrera II, highlighting the Government’s

11 concession that to qualify as an unlawful user, the “drug

use would have to be with regularity and over an extended

period of time.” Patterson,

. The

Patterson court implicitly adopted this definition,

stating, “In Patterson’s case, the ‘pattern of use’

language in the inference instruction aligns with the

above-quoted ‘period of time’ language considered by the

Herrera II court; moreover, the inference instruction

properly requires a time frame that coincides with

possession of the firearm.”

The Patterson court supported its rationale with the

synonymous definitions found in other jurisdictions. It

pointed to the explanations of the Third Circuit,4 Fourth

Circuit,5 Eighth Circuit,6 and Ninth Circuit7 to illustrate

4 United States v. Augustin,

(3d Cir. 2004) (“[T]o be an unlawful user, one needed to have engaged in regular use over a period of time proximate to or contemporaneous with the possession of the firearm.”). 5 United States v. Jackson,

(4th Cir. 2002) (upholding district court finding that the prosecution must establish a “pattern of use and recency of use.”) 6 United States v. Turnbull,

(8th Cir. 2003) (“[C]ourts generally agree the law runs the risk of being unconstitutionally vague without a judicially-created temporal nexus between the gun possession and the regular drug use.”). 7 United States v. Purdy,

(9th Cir. 2001) (“[T]o sustain a conviction under § 922(g)(3), the 12 the support of its approach. Patterson,

-

39.

In the instant case, McCowan qualifies as an unlawful

user. He admits daily use of marijuana from age 13 to

August 2004 and the recreational use of cocaine at age

15. He tested positive for marijuana use in April 2005.

His drug use falls within the definition of “unlawful

user” implicitly defined in Patterson in that McCowan

followed a pattern of use over an extended period of

time. Accordingly, we find no error on the part of the

district court.

4. Arrest While Under Criminal Justice Sentence

McCowan asserts that the district court erred in

considering him to be “under a criminal justice

sentence,” which ultimately added two points to his

criminal history, per U.S.S.G. § 4A1.1. He acknowledges

that, under the guidelines, he would qualify for this

classification, as he was under an outstanding violation

warrant from a prior sentence. See U.S.S.G. §§ 4A1.2(m),

government must prove...that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his...possession of a firearm.”). 13 4A1.1(d) cmt. 4. However, he argues that the Texas courts

lacked jurisdiction over his probation under Texas law

because they failed to exercise due diligence to execute

the warrant for his probation violation.

McCowan’s argument is foreclosed by United States v.

Anderson,

(5th Cir. 1999). In

Anderson, this court held that an outstanding Texas

probation violation warrant mandated a two-point increase

under the sentencing guidelines despite the lack of

effort on the part of the authorities to execute the

warrant. The court determined that the guidelines do not

require this court to consider the diligence of state

authorities in executing the warrant.

. The

district court therefore did not err in applying the two-

point increase.

Conclusion

For these reasons, we affirm the judgment of the

district court.

AFFIRMED.

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