IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20613
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRENCE C. GREER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-630-1
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July 17, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Terrence C. Greer appeals his convictions and sentences for
possession of firearms and ammunition in violation of 18 U.S.C.
§ 922(g)(1). Greer argues that the district court erred in
denying his motion to suppress evidence seized because the search
that yielded that evidence was not sufficiently attenuated from a
prior unconstitutional search.
*
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that this opinion should not be published and is not precedent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.
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We review a motion to suppress based on live testimony at a
suppression hearing accepting the trial court’s factual findings
“unless clearly erroneous or influenced by an incorrect view of
the law.” United States v. Alvarez, 6 F.3d 287, 289 (5th Cir.
1993). Questions of law are reviewed de novo. See United States
v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998).
Where evidence is obtained pursuant to a consent to search
which follows a Fourth Amendment violation, the court considers
whether the consent was voluntarily given and whether it was
sufficiently independent of the violation that there was a break
in the chain of events sufficient to refute the inference that
the evidence was a product of the constitutional violation.
United States v. Vega, 221 F.3d 789, 801 (5th Cir. 2000), cert.
denied, 531 U.S. 1155 (2001). A determination of whether the
causal chain was broken involves a consideration of three
factors: “(1) the temporal proximity of the illegal conduct and
the consent; (2) the presence of intervening circumstances; and
(3) the purpose and flagrancy of the initial misconduct.” Id.
at 801-02.
The district court did not err in finding that Greer’s wife
voluntarily consented to the search and that that search was
sufficiently attenuated from the prior search due to the
intervening change in atmosphere. See United States v. Richard,
994 F.2d 244, 252 (5th Cir. 1993). We therefore need not reach
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the Government’s argument, raised in its responsive brief, that
the initial search was not unconstitutional.
With regard to Greer’s argument that the officers’ keeping
of his house key constituted a “separate constitutional
violation,” Greer failed to raise this issue before trial, and we
find no plain error. See United States v. Maldonado, 42 F.3d
906, 912 (5th Cir. 1995).
Nor did the district court clearly err in finding that
Greer’s wife had authority to consent to the search since the
house was her residence and the place where she kept her
possessions and she paid the rent. See United States v. Asibor,
109 F.3d 1023, 1038 (5th Cir. 1997). The district court did not
err in denying Greer’s motion to suppress.
Greer also argues that U.S.S.G. § 3E1.1 does not preclude an
acceptance-of-responsibility reduction where the defendant, as
Greer did, proceeds to trial on stipulated facts to preserve his
motion to suppress for appellate review. We will not disturb a
district court’s refusal to reduce a defendant’s offense level
for acceptance of responsibility unless it is without foundation.
See Maldonado, 42 F.3d at 913. Here, the dispositive evidence,
i.e., that Greer possessed guns and ammunition, was the evidence
that Greer sought to suppress. See id. The district court’s
refusal to apply U.S.S.G. § 3E1.1 was not “without foundation.”
Although he concedes that this court has rejected his
argument, Greer argues that his convictions under 18 U.S.C.
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§ 922(g)(1) must be reversed because to convict a defendant who
possesses a gun whose only nexus with interstate commerce was
that at some point in the past the gun traveled in interstate
commerce is unconstitutional. This court has repeatedly rejected
constitutional challenges to 18 U.S.C. § 922(g)(1) convictions,
concluding that the interstate commerce element is satisfied by
the possession of a firearm that was manufactured in a different
state or country. See United States v. Daugherty, 264 F.3d 513,
518 (5th Cir. 2001), cert. denied, 122 S. Ct. 1113 (2002). Thus,
Greer’s argument fails. Likewise, Greer’s alternative argument
that the indictment was insufficient because it did not allege a
“substantial effect” on interstate commerce also fails. See
United States v. Gresham, 118 F.3d 258, 264-65 (5th Cir. 1997).
Greer argues that the indictment charging him in separate
counts of possession of firearms and ammunition is multiplicitous
and that his separate convictions and sentences are in violation
of the Double Jeopardy clause. Greer waived his objection to the
multiplicity of the charges in the indictment by not raising it
in the district court. See United States v. Dixon, 273 F.3d 636,
642 (5th Cir. 2001); see also FED. R. CRIM. P. 12(b)(2)).
However, Greer did not waive his complaint about the multiplicity
of the sentences. Id. This court reviews his contention for
plain error. Dixon, 273 F.3d at 642.
Congress did not intend the simultaneous possession of
ammunition to stand as a distinct unit of prosecution from the
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possession of a firearm. See United States v. Berry, 977 F.2d
915, 919 (5th Cir. 1992). The Double Jeopardy Clause is
implicated because Greer’s sentences are not truly concurrent, as
he was assessed a special assessment on each conviction. See
United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir. 1995).
Therefore, the sentences are vacated and the matter remanded to
the district court with instructions that the conviction of Greer
on one of the counts, at the election of the Government, is to be
reversed and that count is to be dismissed. The district court
is further instructed to resentence Greer on the remaining
conviction. The conviction on the remaining count is deemed
affirmed. See Ball v. United States, 470 U.S. 856, 864-65
(1985); United States v. Munoz-Romo, 989 F.2d 757, 759-60 (5th
Cir. 1993); United States v. Osunegbu, 822 F.2d 472, 481 and n.26
(5th Cir. 1987).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.