IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 10, 2009
No. 08-51109
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARTHUR LONGORIA, JR., also known as Arthur Longoria,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CR-92-1
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
A jury convicted Arthur Longoria, Jr., of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court
sentenced Longoria to 120 months in prison. Longoria appeals his conviction,
arguing that (1) the evidence that the firearm traveled in interstate commerce
was insufficient to support his conviction, (2) the district court erred when it
failed to suppress the search of Longoria’s residence and the evidence seized
therefrom, (3) the district court erred when it failed to suppress Longoria’s post-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51109
Miranda statements, and (4) the district court erred when it enhanced
Longoria’s offense level on the basis of relevant conduct not proven to a jury
beyond a reasonable doubt or admitted by Longoria. For the following reasons,
we affirm.
In his first assignment of error, Longoria asserts that the evidence that the
firearm traveled in interstate commerce was insufficient to support his
conviction. The trial testimony established that the firearm was manufactured
in Ohio and shipped to Texas, the state in which Longoria resides. The trial
testimony further established that Longoria purchased the firearm in Texas.
Thus, the Government produced sufficient evidence from which a jury could
conclude beyond a reasonable doubt that the firearm possessed by Longoria
affected interstate commerce. See United States v. Guidry, 406 F.3d 317-18 (5th
Cir. 2005); § 922(g).
Longoria also mounts an as-applied constitutional challenge to his
conviction under § 922(g)(1), arguing that the Government had to prove that his
possession of a firearm had a “substantial” effect on interstate commerce under
United States v. Lopez, 514 U.S. 549 (1995). Longoria’s argument is foreclosed
by this court’s precedent. See United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996).
In his second assignment of error, Longoria contends that the district court
erred when it denied his motion to suppress the warrant authorizing the search
of his house and the evidence seized therefrom, asserting alternative arguments.
Longoria first argues that the detectives violated local law when they seized his
garbage without a warrant. Accordingly, Longoria argues that because the
primary basis for the warrant -- the garbage -- was illegally seized, the search
warrant was invalid and violative of the Fourth Amendment. Longoria’s
argument is without merit. Because Longoria had no reasonable expectation of
privacy in the garbage he deposited on the curb for collection, the Fourth
Amendment is not implicated. See California v. Greenwood, 486 U.S. 35, 37, 39-
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No. 08-51109
42 (1988); see also United States v. Vahalik, 606 F.2d 99, 100-01 (5th Cir. 1979).
Nothwithstanding the privacy issue, Longoria’s argument remains meritless.
This court has long held that evidence obtained in violation of state law, but not
federal law, may be used in a federal prosecution. See United States v. Walker,
960 F.2d 409, 415 (5th Cir. 1992).
Longoria alternatively argues that the affidavit offered in support of the
warrant application failed to provide the issuing judge with enough information
to determine the existence of probable cause. Longoria further argues that
because the affidavit was lacking in information, the issuing judge’s actions were
“a mere ratification of the conclusion of others.” Aside from these conclusory
statements, Longoria offers no record support and no argument in support of his
assertions. Accordingly, Longoria has abandoned this claim. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
In his third assignment of error, Longoria contends that the district court
should have suppressed the post-Miranda statements he made to police while
they were searching his house as well as the statements he made following his
arrest. Longoria asserts that his waiver of his rights under Miranda v. Arizona,
384 U.S. 436 (1966) was involuntary as a result of police coercion, i.e., that the
police told him honesty was the best policy. Longoria’s arguments are
unavailing under this court’s holdings in United States v. Ballard, 586 F.2d
1060, 1063 (5th Cir. 1978), and United States v. Paden, 908 F.3d 1229, 1235 (5th
Cir. 1990).
In his last assignment of error, Longoria argues that the district court
erred when it enhanced his offense level on the basis of relevant conduct not
proven to a jury or admitted by him. Longoria’s argument is foreclosed, as he
concedes. See United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2006); United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)
AFFIRMED.
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