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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-851-1
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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 18 U.S.C.
§ 922(g)(1) and 18 U.S.C. § 924 (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 18 U.S.C. § 922(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that this opinion should not be published and is not precedent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, 6 F.3d 287, 289 (5th Cir. 1993). Questions of law,
including ultimate conclusions of Fourth Amendment
reasonableness, are reviewed de novo. United States v. Paige,
136 F.3d 1012, 1017 (5th Cir. 1998). Evidence is viewed in the
light most favorable to the prevailing party. Id. 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, 121
F.3d 928, 938 (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
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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, 842 F.2d 111, 112-13 (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 18 U.S.C.
§ 922(g)(1) in light of United States v. Lopez, 514 U.S. 549
(1995). Blackmon’s arguments are foreclosed by this court’s
precedent. See United States v. Daugherty, 264 F.3d 513, 518
(5th Cir. 2001), cert. denied, 534 U.S. 1150 (2002).
The judgment of the district court is AFFIRMED.