                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                     ________________________________

                               No. 00-50372
                     ________________________________


                        United States of America,

                                                     Plaintiff-Appellee,

                                      v.

                             Al Lee McGruder,

                                                    Defendant-Appellant.

          _____________________________________________

           Appeal from the United States District Court
                 For the Western District of Texas
                          (MO-99-CR-67-2)
          _____________________________________________
                            May 15, 2001

Before DAVIS, WIENER and STEWART, Circuit Judges.

PER CURIAM:*

     Al Lee McGruder was convicted of one count of possession of

cocaine base in violation of 21 U.S.C. § 844(a) and one count of

being an unlawful user of a controlled substance in possession of

a firearm in violation of 18 U.S.C. § 922(g)(3).            McGruder now

challenges the district court’s denial of his motion to suppress

certain evidence, the sufficiency of the evidence sustaining his

conviction     for   violating   18    U.S.C.   §   922(g)(3),   and   the

constitutionality of 18 U.S.C. § 922(g)(3) as applied to him in


     *
      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this opinion should not be published and is not precedent except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.
this case.       For the reasons that follow, we affirm both of

McGruder’s convictions.

                                           I.

     Sergeant     Alan     Thompson     of       the    Midland   County     Sheriff’s

Department observed a confidential informant make a controlled

purchase of      crack   cocaine      at    2413       East   California     Street    in

Midland, Texas. The informant told Thompson that the man with whom

he usually dealt at the house was not there, but that another man

had sold him the crack cocaine.             Sergeant Thompson then determined

that the man who had previously sold the crack cocaine to the

informant was an Allen Lumant Wilson.                   The informant tentatively

confirmed Thompson’s conclusions, and Thompson obtained a warrant

to search the house at 2413 East California Street and to arrest

Allen Lumant Wilson.

     Several officers from the Midland County Sheriff’s Department

executed the warrant on January 8, 1999.                      Upon approaching the

house,   the    officers    saw   two      people       inside,   one   of   whom     was

McGruder.      McGruder, a black male who is 5'9" tall and weighs 165

pounds, bore some resemblance to Wilson, who was described in the

warrant as a black male who is 5'11" tall and weighs 130 pounds.

The officers entered the house and secured McGruder and the other

occupant by handcuffing them and placing them on the floor.                           The

officers then searched McGruder’s person and discovered a matchbox

wrapped in currency in his front pants pocket.                          The matchbox

contained 18 rocks of crack cocaine.                     The search of the house

                                           -2-
turned up a loaded Smith & Wesson revolver hidden under a couch and

a rifle in one of the bedrooms.             McGruder was then placed under

arrest and read his Miranda rights.           McGruder then admitted to the

officers that he owned the revolver.

                                  II.A.

     McGruder first argues on appeal that the district court erred

in not suppressing the evidence the officers found while executing

the search warrant.       In particular, he argues that the search of

his person was illegal because he was not the person named in the

warrant.    He also argues that the affidavit prepared by Sergeant

Thompson in his application for the warrant was insufficient to

show probable cause.       When reviewing the denial of a motion to

suppress,   we   review     factual    findings     for   clear   error   and

conclusions of law de novo.     United States v. Cherna, 184 F.3d 403,

406 (5th Cir. 1999), cert. denied, 529 U.S. 1065, 120 S.Ct. 1669,

146 L.Ed.2d 479 (2000).

     Where the police have probable cause to arrest one person and

they reasonably mistake a second person for the first person, then

the arrest of the second person is a valid arrest.                  Hill v.

California, 401 U.S. 797, 802, 91 S.Ct. 1106, 28 L.Ed.2d 484

(1971); Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994).            As

we have said, McGruder bore some resemblance to the description of

Wilson in the warrant.       Based on that fact and the other facts

recited in the affidavit attached to the warrant - in particular,

the presence of crack cocaine at 2413 East California Street - the

                                      -3-
officers had a good faith belief that they were arresting the right

person.       Id.   Thus, McGruder’s arrest was valid even though he was

not the person named in the warrant which the officers were

executing.          As McGruder’s arrest was valid, the officers were

authorized to search his person for any evidence of a crime.

United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38

L.Ed.2d 427 (1973); United States v. Ivy, 973 F.2d 1184, 1187 (5th

Cir.       1992),   overruled   on   other   grounds   by   United   States   v.

Thompson, 122 F.3d 304 (5th Cir. 1998).1

       Concerning the affidavit of Sergeant Thompson, we will not

reach the question of probable cause if the good faith exception

to the exclusionary rule announced in United States v. Leon, 468

U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies.

Cherna, 184 F.3d at 407; United States v. Shugart, 117 F.3d 838,

843 (5th Cir. 1997).        That is, we will not reach the question of

probable cause so long as the officers’ reliance on the warrant was

objectively reasonable.         McGruder argues that Sergeant Thompson’s

affidavit so lacks indicia of probable cause as to make the

officers’ reliance on it objectively unreasonable.              See Leon, 468

U.S. at 915; Shugart, 117 F.3d at 844.

       We agree with the district court that Sergeant Thompson’s

       1
      We also note that the fact that McGruder was searched before
he was arrested is of no consequence in light of the fact that the
police were already authorized to arrest McGruder by virtue of the
warrant. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556,
65 L.Ed.2d 633 (1980); United States v. Hernandez, 825 F.2d 846,
852 (5th Cir. 1987).

                                       -4-
affidavit is not “bare bones”.              The affidavit states that the

confidential informant had seen drugs at 2413 East California

Street and that the informant had given reliable information in the

past.   The affidavit has the facts and circumstances from which a

magistrate   could   make   an   independent     determination    about   the

existence of probable cause.       As such, the officers who executed

the warrant were objectively reasonable in relying on the warrant

to establish probable cause.           United States v. Fields, 72 F.3d

1200, 1214 (5th Cir. 1996).

                                       B.

     McGruder   next   argues     on    appeal    that   the   evidence   was

insufficient to show that he was an unlawful user of a controlled

substance for the purposes of 18 U.S.C. § 922(g)(3).           We review the

sufficiency of the evidence in the light most favorable to the

verdict to determine if a reasonable trier of fact could have found

the element of the crime in question beyond a reasonable doubt.

Id. at 1210.

     Texas State Trooper Jim Faulkner testified that he stopped a

car in which McGruder was a passenger on July 27, 1997.            Faulkner

smelled marijuana smoke in the car and was told by McGruder that he

had been smoking marijuana earlier in the day. Faulkner also found

marijuana under the seat in which McGruder was sitting.              Officer

Jordan Medrano of the Odessa Police Department testified that

McGruder was present in a hotel room that Medrano searched on

September 21, 1998.    Medrano found crack cocaine during the search

                                    -5-
and McGruder admitted to smoking marijuana with the other occupants

of the hotel room.          Finally, McGruder’s counsel argued that the

crack cocaine found on McGruder’s person during the search of 2413

East California Street was more consistent with possession for

personal use than with possession with an intent to distribute.2

The evidence was clearly sufficient to allow the jury to conclude

that McGruder was an unlawful user of a controlled substance.

                                         C.

     McGruder’s      last    argument        on   appeal   is   that    18    U.S.C. §

922(g)(3) is unconstitutional as applied to him.                       In particular,

McGruder    argues   that     the   statute       is   unconstitutionally        vague

because it does not define the time frame in which a defendant must

use a controlled substance in connection with possession of a

firearm.    We review the constitutionality of a federal statute de

novo.     United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999),

cert. denied, 526 U.S. 1126, 119 S.Ct. 1783, 143 L.Ed.2d 811

(1999).

     Given the evidence reviewed above concerning McGruder’s drug

use, an ordinary person would clearly understand that McGruder’s

actions established         him    as   an    unlawful     user   of    a    controlled

substance    at   the   time      the   officers       discovered      that   McGruder

possessed a firearm.        United States v. Edwards, 182 F.3d 333, 335

     2
      McGruder was in fact indicted for possession of cocaine base
with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
The jury found him guilty of the lesser included offense of simple
possession of cocaine base in violation of 21 U.S.C. § 844(a).

                                         -6-
(5th Cir. 1999).

     For the above reasons, the judgment of the district court is

AFFIRMED.

AFFIRMED.




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