IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50797
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY WILLIAM HOWARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
(USDC No. P-97-CR-65-1)
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August 5, 1998
Before JOLLY, SMITH and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Jeffrey William Howard appeals his
conviction and sentence of 57 months’ imprisonment for possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).
Howard claims that the district court erred in denying his motion
to quash the indictment, contending that neither the prior felony
conviction nor the firearms he was charged with possessing were
specified sufficiently to allow him to present an adequate defense.
The record shows, however, that he possessed copies of documents
*
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that this opinion should not be published and is not precedent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.
regarding his prior conviction and that the Government provided him
with documents regarding all of the firearms that were seized.
Howard has failed to allege any prejudice resulting from the
absence in the indictment of the specification of his prior
conviction and failed to demonstrate any prejudice resulting from
the absence in the indictment of the specification of the firearms.
United States v. Nevers, 7 F.3d 59, 62 (5th Cir. 1993).
Howard further argues that the district court erred in denying
his motion for change of venue without first conducting a hearing
and without questioning the jury panel regarding prejudice.
Howard’s motion was not sufficiently specific to warrant an
evidentiary hearing. Even on appeal, Howard fails to state any
particulars concerning the nature and amount of publicity that he
contends was prejudicial. He does not aver what evidence he would
have produced if given the opportunity. Howard has not shown that
the district court abused its discretion in denying his motion for
change of venue without conducting an evidentiary hearing. United
States v. Smith-Bowman, 76 F.3d 634, 637 (5th Cir.), cert. denied,
518 U.S. 1011 (1996).
Howard next complains that the district court erred in denying
his motion to suppress. He argues that the evidence of the
firearms seized after his arrest should have been suppressed
because he was arrested without a warrant and without probable
cause. Based on the facts known to the authorities, probable cause
existed for the arrest of the occupant of the Oldsmobile that was
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traveling with the Suburban, and Howard was that occupant. The
district court did not err in denying Howard’s motion to suppress.
Ornelas v. United States, 517 U.S. 690, 699 (1996); United States
v. Tellez, 11 F.3d 530, 532 (5th Cir. 1993).
Howard insists that the Government “introduced no proof that
[he] had been convicted of any offense punishable by imprisonment
for a term exceeding one year.” We find that the evidence of
Howard’s prior felony conviction was sufficient based on the
testimony of ATF Agent Young and Deputies Howell and Rivera.
Howard urges that ATF Agent Robert White’s testimony was
insufficient to prove the element of “in and affecting commerce.”
White testified that all of the subject firearms were manufactured
outside the State of Texas. An expert’s testimony that the firearm
was manufactured outside the state in which it was found is
sufficient to prove interstate nexus. United States v. Privett, 68
F.3d 101, 104 (5th Cir. 1995).
Howard does not adequately argue, by way of record citations
or by application of the facts to the law, the issue of
insufficiency of the evidence relating to his possession of the
firearms. We therefore deem this issue to have been forfeited.
United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir.
1991).
Howard also argues that the “Resolution of Disputed Factors
procedure in U.S.S.G. Section 6A1.3 was not followed by the court.”
He further contends that “[a]dequate opportunity to present
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information to the Court was not afforded. Additionally, the
required hearing procedures in Fed. R. Crim. P. 32(a)(1) were not
followed and Defendant had no notice of the Court’s tentative
findings prior to sentencing.” He asserts that he had no
meaningful opportunity to rebut the Government’s facts. Howard
contends that the Government failed to prove that his conduct
involved five to seven firearms, supporting a two-level upward
adjustment.1
The district court did not clearly err in determining that
Howard was in possession of not only the two firearms in his own
vehicle but was in constructive possession of the seven firearms in
the Suburban. See United States v. Ramos, 71 F.3d 1150, 1157 and
n.25 (5th Cir. 1995).
Finally, Howard fails to explain how the sentencing procedures
employed by the district court, which included notice of the
probation officer’s recommendations in the PSR, an opportunity to
object to the PSR, a sentencing hearing, and a specific factual
finding on his objection, failed to comply with the cited rules.
We do not address these arguments because Howard failed to brief
them adequately. Valdiosera-Godinez, 932 F.2d at 1099.
1
Although it appeared from his statement of the issues
that Howard also intended to challenge the district court’s
calculation of his base offense level based on his possession of
several Norinco rifles, in the argument portion of his brief,
Howard merely mentions this objection but does not provide any
argument. His argument focuses on the number of firearms only.
Thus, any issue relating to the base offense level is considered
forfeited. Valdiosera-Godinez, 932 F.2d at 1099.
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AFFIRMED.
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