UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 93-4226 & 93-4872
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIUS CASTLE PRUDHOME,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Texas
(January 17, 1994)
Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
In these appeals which we have consolidated upon motion of the
defendant, Julius Castle Prudhome appeals his conviction for
possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), his
sentence, and the court's severance of the ammunition count. For
the reasons assigned, we affirm the conviction and sentence and
dismiss the appeal of the severance order.
Background
A Beaumont, Texas police officer stopped the vehicle that
Prudhome was driving because it lacked a front license plate.
Prudhome had no driver's license or other form of identification.
He claimed to be James Pitre but one of his passengers told the
officer that he was James Henderson. Unable to determine
Prudhome's real identity, the officer placed him under arrest for
failure to possess a driver's license and proof of financial
responsibility. A search of Prudhome's person revealed a waist
pouch containing three live .25 caliber bullets, two objects that
the officer believed to be rock cocaine, and a razor blade. The
officer then asked the front-seat passenger, Patricia Corbin, to
exit the car. She complied but kept her hand in the pocket of her
dress. Fearing a weapon, the officer told Corbin to take her hand
out of her pocket. When she did more objects resembling rock
cocaine fell to the ground. The officer searched the passenger
compartment of the car and found a .25 caliber automatic pistol
underneath the driver's seat.
The cocaine-like objects did not contain cocaine but Prudhome
was found to have prior felony convictions. He was indicted for
possession of a firearm and ammunition in violation of 18 U.S.C.
§ 922(g)(1). A jury found him guilty of both counts and the trial
court, determining that his prior convictions included three
violent felonies or serious drug offenses, sentenced him to 288
months imprisonment under the enhancement provisions of 18 U.S.C.
§ 924(e) and U.S.S.G. § 4B1.4. Mindful of double jeopardy
2
limitations,1 the district court entered sentence on the firearm
count only. Prudhome timely appealed and the court granted the
government's motion to sever the ammunition count. Prudhome
appealed that ruling. The two appeals are consolidated for
resolution.
Analysis
Prudhome first claims error in the denial of his third motion
for a continuance which he contends he needed to secure Corbin's
attendance at trial. He made no showing, however, of the testimony
that Corbin was expected to give or of her availability and
willingness to testify. The district court did not abuse its
discretion in denying that continuance.2
Next Prudhome maintains that his motion to suppress the
evidence seized upon his arrest should have been granted. We
disagree. The initial stop for failure to display a front license
plate was proper under Texas law.3 Even if Prudhome presented the
front plate to the officer, as he asserts, he violated the law by
not possessing a valid driver's license while operating a motor
vehicle4 and was subject to arrest.5 The contemporaneous search of
1
See United States v. Berry, 977 F.2d 915 (5th Cir. 1992).
2
See United States v. Shaw, 920 F.2d 1225 (5th Cir.), cert.
denied. 111 S.Ct. 2038 (1991).
3
Tex.Civ.Stat. article 6675a-3e, section 5(a).
4
Tex.Civ.Stat. article 6687b, section 13.
5
Snyder v. State, 629 S.W.2d 930 (Tex.Cr.App. 1982).
3
his person and the passenger compartment of the vehicle from which
he emerged was a valid incident of the arrest.6
Prudhome challenges the sufficiency of the evidence that he
possessed the firearm. Disclaiming knowledge of the gun's
presence, he contends that the car belonged to Corbin who had asked
him to drive only minutes before the stop. A reasonable jury was
entitled to discredit defense testimony and infer knowing
possession from the facts that Prudhome was driving, the gun was
located directly under his seat, and he had three rounds of
matching ammunition in his waist pouch.7 We conclude that the
record contains relevant evidence sufficient to support the
verdict.
Concomitantly Prudhome objects to the district court's refusal
to give his proffered instruction that mere presence is
insufficient to support a conviction. The court a quo` instructed
the jury as follows:
"Possession," as that term is used in this case, may
be of two kinds: actual possession and constructive
possession. A person who knowingly has direct physical
control over a thing, at a given time, is then in actual
possession of it.
A person who, although not in actual possession,
knowingly has both the power and the intention, at a
given time, to exercise dominion or control over a thing,
either directly or through another person or persons, is
then in constructive possession of it.
6
New York v. Belton, 453 U.S. 454 (1981).
7
See United States v. Perez, 897 F.2d 751 (5th Cir.)
(constructive possession may be inferred from dominion over the
vehicle in which the contraband item is located), cert. denied, 498
U.S. 865 (1990); cf. United States v. Mora, 994 F.2d 1129 (5th
Cir.), cert. denied, 114 S.Ct. 417 (1993).
4
Possession may be sole or joint. If one person
alone has actual or constructive possession of a thing,
possession is sole. If two or more persons share actual
or constructive possession of a thing, possession is
joint.
You may find that the element of possession, as that
term is used in these instructions, is present if you
find beyond a reasonable doubt that the defendant had
actual or constructive possession, either alone or
jointly with others.
We previously have held that an instruction requiring a finding of
intent to exercise dominion or control over the contraband, as
here, obviates the need for a separate mere presence instruction.8
Prudhome's argument is foreclosed by circuit precedent.
Prudhome next challenges his 288-month sentence, contending
that the district court should have granted his request for a
downward departure. We review the district court's refusal to
depart from the Sentencing Guidelines only for an error of law. We
find none herein; nor do we find a constitutional defect, as urged
by Prudhome, in the application of the guidelines.
The severity of Prudhome's sentence was directly related to
the gravity of his criminal history. The court's finding that
Prudhome had three prior convictions of violent felonies or serious
drug offenses subjected him to a 15-year mandatory minimum sentence
under 18 U.S.C. § 924(e) and placed him at offense level 33 under
U.S.S.G. § 4B1.4. His priors, which included convictions for
felony theft, rape, aggravated robbery, and distribution of a
controlled substance, resulted in a criminal history score of 26,
8
United States v. McKnight, 953 F.2d 898 (5th Cir.), cert.
denied, 112 S.Ct. 2975 (1992).
5
well above the 13 points needed to put him in Criminal History VI,
the highest guidelines category. The indicated sentencing range
was 235 to 293 months. In selecting a 288-month sentence the
district judge observed: "I think you have forfeited your right to
live in a free society. You will not conform to the rules. You do
not think the rules comport with you."
Sentence enhancement for recidivism is an effort by the
legislative branch to deal with those who, by repeated criminal
acts, demonstrate an unwillingness or inability to conform to the
norms of society.9 So considered, sentence enhancement passes due
process and equal protection scrutiny.10 Prudhome nonetheless
claims that his sentence was disproportionately severe. He
misperceives the law. His sentence is within the guideline range,
a persuasive indication that it is not grossly disproportionate
considering the offense and the offender.11
Prudhome's final challenge concerns the severance of the
ammunition count. He insists that the count should have been
dismissed under our decision in United States v. Berry.12 In Berry,
we held that the double jeopardy clause bars conviction of and
sentencing for the simultaneous possession of a firearm and
ammunition as two distinct violations of 18 U.S.C. § 922(g)(1).
9
Rummel v. Estelle, 445 U.S. 263 (1980).
10
United States v. Hayden, 898 F.2d 966 (5th Cir. 1990).
11
See United States v. Sullivan, 895 F.2d 1030 (5th Cir.),
cert. denied, 498 U.S. 877 (1990).
12
See supra, note 1.
6
The government agrees that it must dismiss the ammunition count but
only when and if the conviction and sentence on the firearm count
are affirmed. Consequently, it moved the district court to sever
the ammunition count so that it might be held in abeyance pending
the appeal of the firearm count. As noted, the district court
granted the motion after Prudhome appealed his conviction and
sentence on the firearm count.13
We agree with the government that the count which the
government elects to dismiss may be held in abeyance pending
exhaustion of direct review of the count on which the court
sentenced.
The conviction for unlawful possession of a firearm and the
attendant sentence are AFFIRMED. The appeal of the severance order
is DISMISSED as moot.
13
We address sua sponte jurisdictional considerations. The
district court retained jurisdiction to enter the severance order
because the ammunition count was not involved in the pending appeal
of the firearm count. Cf. United States v. Green, 882 F.2d 999
(5th Cir. 1989) (district court loses jurisdiction over matters
involved in the appeal). We have jurisdiction to hear Prudhome's
appeal of the severance order, even though it is interlocutory,
because the order implicates his rights under the double jeopardy
clause. United States v. Woods, 949 F.2d 175 (5th Cir. 1991),
cert. denied, 112 S.Ct. 1562 (1992).
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United States v. Prudhome
Combined Opinion