United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2004
Charles R. Fulbruge III
Clerk
No. 04-40215
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOMMY JAMES LEE HORNE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-81-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Tommy James Lee Horne appeals his conviction and sentence
for being a felon in possession of a firearm and for possession
of an unregistered firearm. See 18 U.S.C. § 922(g); 26 U.S.C.
§ 5861(d). Horne argues that the evidence at trial was
insufficient to support his convictions because there was no
proof that he knowingly possessed the weapon.
The evidence showed that Horne was the sole occupant of the
vehicle he was driving and that the weapon was wedged between the
*
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this opinion should not be published and is not precedent except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. 04-40215
-2-
back seat cushions directly behind him. The weapon was visible
and accessible to him from the driver’s seat. Horne therefore
had constructive possession of the weapon. See United States v.
Dancy, 861 F.2d 77, 81 (5th Cir. 1988). Thus, the evidence
established Horne’s guilt beyond a reasonable doubt. See United
States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir. 1995).
Horne challenges the district court’s use of his prior
convictions for burglary of a building and delivery of a
controlled substance to enhance his sentence pursuant to
18 U.S.C. § 924(e). The evidence presented at Horne’s sentencing
hearing included certified copies of the indictment as well as
the judgment of conviction on the burglary charge. The elements
of a “generic” burglary were sufficiently spelled out in those
documents. See Taylor v. United States, 495 U.S. 575 (1990).
Horne’s suggestion that there was insufficient proof of his prior
burglary conviction and that the court relied solely on the
presentence report’s (PSR’s) assertion of the conviction is
frivolous.
Horne’s argument that his narcotics conviction is no longer
“viable” is equally frivolous. His citation to 18 U.S.C. § 921
is inapposite. That statute deals with vacated or expunged
convictions. Horne admits, and the evidence at sentencing
showed, that it was his sentence and not his conviction for
delivery of a controlled substance that was vacated.
No. 04-40215
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Horne argues that he was denied due process because he was
not given sufficient notice of the Government’s intent to rely on
his prior convictions to enhance his sentence. Horne received
notice through the PSR, and he challenged the armed career
criminal enhancement through written objections and at the
sentencing hearing. The notice was therefore sufficient.
See e.g., United States v. O’Neal, 180 F.3d 115, 125 (4th Cir.
1999).
Horne argues that the indictment and jury charge were
insufficient because they failed to contain any information
regarding his prior convictions. This argument is foreclosed by
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.
Stone, 306 F.3d 241 (5th Cir. 2002).
AFFIRMED.