United States Court of Appeals
Fifth Circuit
F I L E D
REVISED NOVEMBER 30, 2006
IN THE UNITED STATES COURT OF APPEALS November 1, 2006
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 05-50714
__________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS DWAYNE MCCOWAN,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for
the Western District of Texas, Midland/Odessa Division
No. 7:04-cr-00217-RAJ-ALL
___________________________________________________
Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit
Judges.
DENNIS, Circuit Judge:
Marcus McCowan was convicted of possession of a
firearm with an obliterated serial number, in violation
of 18 U.S.C. § 922(k), and sentenced to a term of
imprisonment of 18 months, three years of supervised
1
release and a $100 special assessment. On appeal, he
assigns as error: (1) the refusal of the district court
to suppress statements he made in a post-arrest
interview; (2) the denial by the district court of his
motion for acquittal; (3) the district court’s
classification of him as a “prohibited person” and
consequent increase of his offense level at sentencing;
and (4) the district court’s determination that McCowan
was arrested while under a criminal justice sentence and
the consequent addition of two criminal history points
for sentencing purposes.
Facts
The Odessa Police placed McCowan’s suspected
residence under watch. Detectives Travland and Lane had
seen McCowan, also known as “Chucky,” at the house twice.
On October 13, 2004, based on Travland’s affidavit, they
obtained a search warrant for the house and an arrest
warrant for its occupants. Prior to the execution of the
warrant, Travland, Lane, and narcotics detective Duarte
saw Phidel Love arrive in a car, unlock the door with a
key, enter the house, and remain for twenty minutes.
2
After his exit, the officers detained Love and brought
him back to the house. Upon entering the dwelling in
execution of the warrant, the officers encountered
Heather Wilson, who informed them that McCowan resided
there. The officers found two handguns in the living
room, a .45 caliber handgun found under a couch and a
.380 caliber handgun, with the serial number obliterated,
found underneath a smaller couch, i.e., a love seat.
Beside the .380, approximately six to eight inches away,
was a baggie of marijuana. The law enforcement officials
found ammunition for the .380 in the only bedroom that
appeared to have been used. At this point, the police
outside the house saw McCowan pass by as a passenger in
a car they recognized to be his brother’s. They chased
the car down, returned him to the house, searched him,
and arrested him. They gave him Miranda warnings and
began to question him. He gave them a statement in which
he admitted: (1) he and Love resided at the house; (2)
the handgun in question belonged to his mother; (3) he
kept the handgun at the house for protection; (4) he knew
its serial number had been filed off; (5) he knew that
3
possession of a firearm with an obliterated serial number
was unlawful; and (6) he thought the firearm probably had
been stolen. The detectives also took statements from
Love and Wilson. Detective Duarte testified that their
statements substantially corroborated McCowan’s
confession.
Analysis
1. The Motion to Suppress
McCowan argues that the district court erred in
denying his motion to suppress his post-arrest
statements. He contends that his arrest was illegal
because (1) the arrest warrant was defective; and (2) the
officers lacked probable cause to arrest him without a
warrant. Therefore, he argues that his post-arrest
statements were tainted by the illegality of the arrest.
McCowan did not attack the search warrant or the
officers’ initial entry into the house.
We review motions to suppress under two standards:
(1) we accept the district court’s findings of fact
unless clearly erroneous; and (2) we review the ultimate
constitutionality of the law enforcement action de novo.
4
United States v. Orozco, 191 F.3d 578, 581 (5th Cir.
1999).
We need not address the validity of the arrest
warrant in question. McCowan’s arrest was a lawful
warrantless arrest based upon probable cause. “Probable
cause exists when the totality of the facts and
circumstances within a police officer’s knowledge at the
moment of arrest are sufficient for a reasonable person
to conclude that the suspect had committed or was
committing an offense.” United States v. Ramirez, 145
F.3d 345, 352 (5th Cir. 1998) (citing United States v.
Shugart, 117 F.3d 838, 846 (5th Cir. 1997)). At time of
the arrest, the officers knew that: (1) the warrant
affidavit listed “Chuck” McCowan as a suspect; (2) Marcus
McCowan used and was known by that name; (3) the occupant
Wilson said McCowan lived in the house; (4) the police
had seen McCowan at the house twice before; (5) the
police saw McCowan motoring past the house during the
search; and (6) the search uncovered drugs and a firearm
with an obliterated serial number. The combination of
these facts was sufficient to give the officers probable
5
cause to believe McCowan resided in the house and used it
in connection with drug and handgun related crimes. Thus,
the police had probable cause to arrest him for these
offenses. Consequently, his post-arrest statement
resulted from a lawful, rather than unlawful, arrest.
Accordingly, the district court did not err in denying
McCowan’s motion to suppress his post-arrest statements.
2. The Motion to Acquit
McCowan asserts that the district court erred in
denying his motion for acquittal. He contends that the
evidence is insufficient to support his conviction.
Specifically, he argues that the only evidence linking
him with the altered firearm is his own uncorroborated
confession.
We review denials of motions to acquit de novo.
United States v. Delgado, 256 F.3d 264, 273 (5th Cir.
2001). “The jury's verdict will be affirmed if a
reasonable trier of fact could conclude from the evidence
that the elements of the offense were established beyond
a reasonable doubt.” Id.
When the district court seizes on a confession as the
6
keystone evidence presented, it must ensure there is
sufficient corroborating evidence. Corroborating evidence
is sufficient where it justifies a jury’s inference of
the truth of the confession. United States v. Deville,
278 F.3d 500, 507 (5th Cir. 2002).
To prove a violation under 18 U.S.C. § 922(k), the
government must show, among other elements, that the
defendant knowingly possessed the firearm.1 United States
v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004).
“Possession may be actual2 or constructive and may be
proved by circumstantial evidence. 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.” United States v.
De Leon, 170 F.3d 494, 496 (5th Cir. 1999) (internal
citation omitted). Proof of constructive possession
requires “some evidence supporting at least a plausible
inference that the defendant had knowledge of and access
1
McCowan does not challenge the sufficiency of the evidence
on the other elements of the crime.
2
The parties have not argued that actual possession can be
proven.
7
to the weapon or contraband.” United States v. Mergerson,
4 F.3d 337, 349 (5th Cir. 1993) (interpreting 18 U.S.C.
§ 922(g)).
The district court found that the following
independent evidence corroborated McCowan’s confession:
(1) Detective Duarte testified that Wilson’s and Love’s
statements “pretty much matched” McCowan’s, identifying
him as the principal occupant of the house; (2) police
saw McCowan at the house twice before the warrant was
executed; and (3) officers outside the house saw McCowan
motoring past the house during the search. Additionally,
items of evidence not alluded to by the district court
further corroborated the confession. These include: (1)
the fact that only the living room and one bedroom showed
signs of occupation and that an officer stated that the
house looked recently moved into, which confirms
McCowan’s statements of the same; and (2) the appearance
of the personal effects in only one bedroom confirmed
McCowan’s statement that he lived in that room and owned
the gun. Taking all this evidence together, the
confession is substantially corroborated, i.e., the
8
evidence supports the inference that McCowan “had
knowledge of and access to” the gun in question.
3. Classification as an Unlawful User of Marijuana in
Possession of a Firearm
The district court classified McCowan as a
“prohibited person” because he was an “unlawful user of
a controlled substance.” See United States Sentencing
Guidelines Manual § 2k2.1(a)(6), cmt. 3. Based on this
classification, the court increased his offense level at
sentencing. McCowan, however, asserts that there is no
evidence that he possessed the marijuana and the firearm
simultaneously.
This court reviews the district court’s
interpretation and application of the Guidelines de novo;
factual findings are reviewed for clear error. United
States v. Villanueva, 408 F.3d 193, 202-03 (5th Cir.
2005).
We find no error in the district court’s
determination that McCowan qualified as a prohibited
person because he was an unlawful user of a controlled
substance. As explained by this court in United States
9
v. Patterson, 431 F.3d 832, 838-39 (5th Cir. 2005), when
interpreting the term “unlawful user,” circuit courts
typically discuss contemporaneousness and regularity.
In Patterson, the defendant appealed his conviction,
contending the trial court erred in its jury instructions
regarding “unlawful users.” Specifically, in his appeal,
Patterson complained of the inference instruction
advocated by the government and requested instead the
definition adopted by the Fifth Circuit in United States
v. Herrera (Herrera I).3 In Herrera I, the court defined
“unlawful user” as “one who uses narcotics so frequently
and in such quantities as to lose the power of self-
control and thereby pose a danger to the public morals,
health, safety, or welfare. In other words, an ‘unlawful
user’ is one whose use of narcotics falls just short of
addiction.” Id. at 323-24. The Patterson court rejected
the Herrera I definition adopted by the district court,
explaining, “The Herrera I standard employed by the
district court was rejected by this court in Herrera II,
[300 F.3d 530 (5th Cir. 2002)].” Id. at 838. The court
3
289 F.3d 311 (5th Cir. 2002).
10
then turned to the inference instruction. The source of
the inference instruction is found in the regulation
implementing 18 U.S.C. § 922(g)(3), namely 27 C.F.R. §
478.11. That regulation provides:
Unlawful user of or addicted to any controlled
substance. A person who uses a controlled
substance and has lost the power of self-control
with reference to the use of controlled
substance; and any person who is a current user
of a controlled substance in a manner other than
as prescribed by a licensed physician. Such use
is not limited to the use of drugs on a
particular day, or within a matter of days or
weeks before, but rather that the unlawful use
has occurred recently enough to indicate that
the individual is actively engaged in such
conduct. A person may be an unlawful current
user of a controlled substance even though the
substance is not being used at the precise time
the person seeks to acquire a firearm or
receives or possesses a firearm. An inference of
current use may be drawn from evidence of a
recent use or possession of a controlled
substance or a pattern of use or possession that
reasonably covers the present time, e.g., a
conviction for use or possession of a controlled
substance within the past year; multiple arrests
for such offenses within the past 5 years if the
most recent arrest occurred within the past
year; or persons found through a drug test to
use a controlled substance unlawfully, provided
that the test was administered within the past
year....
27 C.F.R. § 478.11. The Patterson court discussed the
arguments of Herrera II, highlighting the Government’s
11
concession that to qualify as an unlawful user, the “drug
use would have to be with regularity and over an extended
period of time.” Patterson, 431 F.3d at 838. The
Patterson court implicitly adopted this definition,
stating, “In Patterson’s case, the ‘pattern of use’
language in the inference instruction aligns with the
above-quoted ‘period of time’ language considered by the
Herrera II court; moreover, the inference instruction
properly requires a time frame that coincides with
possession of the firearm.” Id.
The Patterson court supported its rationale with the
synonymous definitions found in other jurisdictions. It
pointed to the explanations of the Third Circuit,4 Fourth
Circuit,5 Eighth Circuit,6 and Ninth Circuit7 to illustrate
4
United States v. Augustin, 376 F.3d 135, 139 (3d Cir.
2004) (“[T]o be an unlawful user, one needed to have engaged in
regular use over a period of time proximate to or contemporaneous
with the possession of the firearm.”).
5
United States v. Jackson, 280 F.3d 403, 406 (4th Cir.
2002) (upholding district court finding that the prosecution must
establish a “pattern of use and recency of use.”)
6
United States v. Turnbull, 349 F.3d 558, 561 (8th Cir.
2003) (“[C]ourts generally agree the law runs the risk of being
unconstitutionally vague without a judicially-created temporal
nexus between the gun possession and the regular drug use.”).
7
United States v. Purdy, 264 F.3d 809, 812-13 (9th Cir.
2001) (“[T]o sustain a conviction under § 922(g)(3), the
12
the support of its approach. Patterson, 431 F.3d at 838-
39.
In the instant case, McCowan qualifies as an unlawful
user. He admits daily use of marijuana from age 13 to
August 2004 and the recreational use of cocaine at age
15. He tested positive for marijuana use in April 2005.
His drug use falls within the definition of “unlawful
user” implicitly defined in Patterson in that McCowan
followed a pattern of use over an extended period of
time. Accordingly, we find no error on the part of the
district court.
4. Arrest While Under Criminal Justice Sentence
McCowan asserts that the district court erred in
considering him to be “under a criminal justice
sentence,” which ultimately added two points to his
criminal history, per U.S.S.G. § 4A1.1. He acknowledges
that, under the guidelines, he would qualify for this
classification, as he was under an outstanding violation
warrant from a prior sentence. See U.S.S.G. §§ 4A1.2(m),
government must prove...that the defendant took drugs with
regularity, over an extended period of time, and
contemporaneously with his...possession of a firearm.”).
13
4A1.1(d) cmt. 4. However, he argues that the Texas courts
lacked jurisdiction over his probation under Texas law
because they failed to exercise due diligence to execute
the warrant for his probation violation.
McCowan’s argument is foreclosed by United States v.
Anderson, 184 F.3d 479, 480-81 (5th Cir. 1999). In
Anderson, this court held that an outstanding Texas
probation violation warrant mandated a two-point increase
under the sentencing guidelines despite the lack of
effort on the part of the authorities to execute the
warrant. The court determined that the guidelines do not
require this court to consider the diligence of state
authorities in executing the warrant. Id. at 481. The
district court therefore did not err in applying the two-
point increase.
Conclusion
For these reasons, we affirm the judgment of the
district court.
AFFIRMED.
14
15
United States v. McCowan
Combined Opinion