                                                           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.




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