United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004
Charles R. Fulbruge III
Clerk
No. 04-30168
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JACOB HENDERSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 03-CR-50069-ALL
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Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Jacob Henderson appeals his sentence imposed following
his guilty plea conviction for being a felon, an armed career
criminal, in possession of a firearm. Henderson was sentenced to
a term of 210 months in prison to be followed by a five-year term
of supervised release.
Henderson argues that there was no evidence that he
possessed or controlled the firearms found in his girlfriend’s
residence. He asserts that the mere possibility of possession
*
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this opinion should not be published and is not precedent except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. 04-30168
-2-
does not equate to actual possession warranting a two-level
upward adjustment under U.S.S.G. § 2K2.1(b)(1)(A) to a total
offence level of 28.
However, Henderson’s possession of firearms had no impact on
his sentencing range. His ultimate offence level of 31 was based
on a mandatory Chapter Four enhancement for armed career
criminals and a two-level reduction for acceptance of
responsibility. Henderson has neither contested the fact that he
is an armed career criminal nor shown how the two level
adjustment under U.S.S.G. § 2K2.1(b)(1)(A) had an effect on his
sentencing guideline range.
Assuming the district court considered Henderson’s
possession of the three firearms in imposing a sentence at the
top of the guideline range, such consideration was appropriate.
There was reliable evidence in the presentence report and
presented at the sentencing hearing that Henderson was aware that
the weapons were in the house and that they were accessible to
him. The evidence gave rise to a plausible inference that
Henderson was in constructive possession of the three firearms
found in the house. See United States v. Houston, 364 F.3d 243,
248 (5th Cir. 2004). The district court did not clearly err in
making the two-level adjustment pursuant to U.S.S.G. §
2K2.1(b)(1)(A) or in considering Henderson’s possession of the
firearms at sentencing.
AFFIRMED.