UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10114
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
CHARLES CLEVELAND NOWDEN
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(No. 4:00-CR-34-1-Y)
November 7, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Charles C. Nowden was determined to have
violated 18 U.S.C. § 2342 (possession of contraband cigarettes)
and § 922(g) of the same title (felon in possession of a firearm)
based on his guilty plea. He appeals both convictions, and we
affirm. We grant Nowden’s motion to file a corrected brief, but
*
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opinion should not be published and is not precedent except under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.
we deny his motion to supplement the record, the documents he
urges now not having been previously offered to the district
court.
For challenges to an indictment raised at trial, so long as
“the statutory language of the charged offense unambiguously sets
out all the necessary elements, an indictment setting forth the
offense in the words of the statute itself is generally
sufficient.” United States v. Hagmann, 950 F.2d 175, 183 (5th
Cir. 1991). We have not determined whether the Contraband
Cigarette Trafficking Act sets out the elements of an offense
under it with the requisite degree of clarity. The Act makes it
“unlawful for any person knowingly to ship, transport, receive,
possess, sell, distribute, or purchase contraband cigarettes.”
18 U.S.C. § 2342(a). Thus, to sustain a conviction under the
Act, the government must prove that the defendant (1) knowingly
(2) shipped, received, possessed etc., cigarettes and (3) that
the cigarettes were themselves unlawful. Nothing besides these
three elements is required to convict under § 2342(a), so the
statute includes each necessary element and does so
unambiguously. Therefore, an indictment tracking § 2342(a)’s
language comports with the Constitution. See United States v.
Gord, 77 F.3d 1192, 1194 (9th Cir. 1996). Any fair reading of
the indictment in this case shows that it mirrors the statutory
language.
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We also reject Nowden’s other arguments--that he was denied
his right to a speedy trial and that he was denied his right to
counsel. Entry of a guilty plea waives all non-jurisdictional
arguments except where the plea is conditional. See United
States v. Bell, 966 F.2d 914, 915 (5th Cir. 1992). No
conditional plea was entered here, and Nowden’s speedy-trial
claim is non-jurisdictional. See United States v. Bell, 966 F.2d
914, 915 (5th Cir. 1992). But the right to counsel, like the
right to an informative indictment, is jurisdictional. See
Johnson v. Zerbst, 304 U.S. 458, 468 (1938). That having been
said, our review of the record does not show that Nowden’s
counsel was absent from the February 14, 2000 preliminary hearing
as Nowden contends. In fact, there was no hearing in Nowden’s
case on that day. To the extent Nowden meant the February 4,
2000 hearing, the record shows that his attorney was in
attendance.
Nor does Nowden’s challenge to the fact of his possession of
a firearm merit relief. “The acceptance of a guilty plea is
deemed a factual finding that there is an adequate factual basis
for the plea.” United States v. Adams, 961 F.2d 505, 508 (5th
Cir. 1992). It is a factual finding that must be sustained
absent clear error. Id. Constructive possession over a firearm
is sufficient to uphold a conviction under 18 U.S.C. § 922(g)(1).
See United State v. DeLeon, 170 F.3d 494, 495 (5th Cir. 1999).
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“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.” Id. at 496. The gun in
this case was found in Nowden’s home, so we cannot say that the
district court’s finding of constructive possession was clearly
erroneous.
AFFIRMED. Motion to file corrected brief GRANTED. Motion
to supplement the record DENIED.
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