                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             August 11, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 03-60983



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                               versus

SAMMY TATE,

                                               Defendant-Appellant.



          Appeal from the United States District Court
            for the Southern District of Mississippi


                         (3:02-CR-13-BN-1)

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     A jury convicted Sammy Tate of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1).             Tate

asserts on appeal (1) that there is insufficient evidence to

support the verdict and (2) that the district court plainly erred

by admitting his disputed admission of ownership of the firearm,

which he asserts was taken in violation of his Miranda rights.        In

response, the government contends that the evidence was sufficient


     *
      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this opinion should not be published and is not precedent except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.
to support the conviction, and any error by admitting Tate’s

disputed admission cannot satisfy the plain error standard of

review.    For the following reasons, we AFFIRM.

                                    I

     In reviewing a sufficiency of evidence claim of error, we view

the evidence in the light most favorable to the government and draw

all reasonable inferences in favor of the jury’s verdict.1         “[W]e

determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”2       It is

the “sole province of the jury to weigh evidence and credibility of

the witnesses.”3      Although prior constructive possession cases are

illustrative,    we    must   independently   examine   the   merits   of

constructive possession cases using a “commonsense, fact-specific

approach.”4

                                    A

     To convict a defendant under 18 U.S.C. § 922(g)(1), the

government must prove (1) that the defendant had been convicted of

a felony; (2) that he knowingly possessed the firearm; and (3) that




     1
         United States v. Smith, 930 F.2d 1081, 1085 (5th Cir. 1991).
     2
         Id.
     3
         United States v. Davis, 752 F.2d 963, 968 (5th Cir. 1985).
     4
       Smith, 930 F.2d at 1086; United State v. Mergerson, 4 F.3d
337, 349 (5th Cir. 1993).

                                    2
the firearm traveled in or affected interstate commerce.5               The

possession      may   be   actual   or       constructive.6   “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.”7       Constructive possession may be proven through

circumstantial evidence.8

     Dominion or control over the premises may be shown by the

presence of the defendant’s personal belongings in the house.9          The

presence of documents that are “sensitive and highly personal in

nature,” like a parole document, and evidence that a defendant

could “come and go as he pleased” can indicate dominion over a

residence.10    That a defendant does not live at the residence does

not necessarily negate constructive possession.11              Dominion or

control over the illegal item may be shown by “the defendant’s

access to the dwelling where the item is found, [and] whether the

defendant had knowledge that the illegal item was present.”12

     5
       18 U.S.C. § 922(g)(1); United States v. De Leon, 170 F.3d
494, 496 (5th Cir. 1999).
     6
          De Leon, 170 F.3d at 496.
     7
          Id.
     8
          Id.
     9
          United State v. Onick, 889 F.2d 1425, 1430 (5th Cir. 1989).
     10
          De Leon, 170 F.3d at 497.
     11
          Id. at 496; Onick, 889 F.2d at 1431 n.2.
     12
          De Leon, 170 F.3d at 497.

                                         3
       Proving constructive possession is more difficult when a

residence is occupied by multiple people.                      “[M]ere control or

dominion over the place in which contraband or an illegal item is

found by itself is not enough to establish constructive possession

when    there     is    joint    occupancy     of    a   place.”13     Constructive

possession is established in joint-occupancy cases “only when there

was some evidence supporting at least a plausible inference that

the    defendant       had   knowledge   of    and    access   to    the   weapon   or

contraband.”14 The presence of a firearm in plain view may indicate

the requisite knowledge and access for constructive possession.15

                                           B

       Tate concedes that he is a felon and that the gun traveled in

interstate commerce.            The only issue is whether a reasonable trier

of    fact     could    have     found   constructive       possession     beyond   a

reasonable doubt.            Tate contends that a reasonable trier of fact

could not have found constructive possession, asserting that the

only evidence presented on the issue was that he occasionally

visited the residence where the gun was found, sometimes spent the

night, and allegedly admitted ownership of the gun. Tate relies on

United States v. Mergerson, a joint-occupancy case, asserting that



       13
            United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).
       14
            Id.
       15
        United States v. McKnight, 953 F.2d 898, 902 (5th Cir.
1992); Smith, 930 F.2d at 1086.

                                           4
the   panel    there   found   insufficient     evidence   to   convict    the

defendant as a felon-in-possession largely because the defendant

was not the owner of the gun.        He seeks the same result because he

was not the owner of the gun. Given that he did not own the gun and

that the evidence indicated his infrequent stays at the house, Tate

asserts that there is legally insufficient evidence to support his

conviction.

      A review of the testimony and evidence illustrates that Tate

is understating the amount of evidence presented to the jury.               In

addition to evidence that Tate occasionally stayed at the house and

his   disputed    admission    of   ownership   of   the   rifle,   the   jury

considered (1) Tate’s admission that he knew the gun was brought

into the home; (2) that the rifle was found in plain view; (3) that

Tate received official mail at the house, including one piece sent

by the Social Security Administration arriving two days before the

search; and (4) that Tate’s mail was found in the same room as the

rifle.

      A reasonable trier of fact could find that Tate had dominion

over the premises.16     It is undisputed that Tate came and went as

he pleased.      He received personal mail at the house and listed the

house as his address when applying for disability payments.                His

girlfriend testified that he kept some personal belongings there.




      16
           Onick, 889 F.2d at 1430-31; De Leon, 170 F.3d at 496-97.

                                      5
     Despite Tate’s claim that his lack of ownership of the home is

dispositive, Mergerson does not support his argument. The panel in

Mergerson first noted that the weapon at issue was concealed under

a bedroom mattress, unlike the weapons in Smith and McKnight that

were in plain view.17     The court also noted that a receipt for the

weapon indicated that the defendant’s girlfriend bought the weapon

before Mergerson moved into the apartment.18      The court held the

evidence to be legally insufficient to support the conviction

because “the weapon was not in plain view and there were no other

circumstantial indicia that established that Mergerson even knew of

the weapon.”19

     In contrast, the evidence in this case could lead a reasonable

trier of fact to conclude that Tate knew of and had access to the

weapon.    By his own admission, Tate knew the rifle was brought to

the home by his nephew and that ownership of the rifle passed to

his son when his nephew died.     He knew that his son, the owner of

the rifle, continued to live in the house.         The evidence also

indicated that the rifle was not hidden in any way; it was lying

against the outside door of a closet.       Further, the weapon is a

rifle, not a handgun, making it less likely that one could stay in

the house but not have knowledge of its presence.    The rifle was in


     17
          Mergerson, 4 F.3d at 349.
     18
          Id at 348-49.
     19
          Id. at 349.

                                   6
plain view, indicating Tate’s access to and knowledge of the

weapon.20   The rifle was located next to a stack of Tate’s personal

mail.

     The    jury   considered   this    evidence   and   Tate’s   testimony,

including the disputed admission of ownership and his alleged

ignorance of the gun’s presence.            It is for the jury to make

credibility determinations and weigh the evidence. Considering the

evidence in its totality and keeping the standard of review in

mind, the evidence presented in this case could lead a reasonable

trier of fact to find constructive possession beyond a reasonable

doubt.

                                       II

     Tate’s second claim of error is that the district court

plainly erred in admitting Detective Harris’s testimony regarding

Tate’s admission of ownership of the rifle.         Tate asserts that his

alleged admission occurred during a custodial interrogation, but

before he was informed of his Miranda rights. He contends that the

improper admission of his alleged statement resulted in reversible,

plain error.

     Tate did not object to the admission of Detective Harris’s

testimony at trial; therefore, we review for plain error.21              To


     20
       See McKnight, 953 F.2d at 902-03; see also Smith, 930 F.2d
at 1086.
     21
       Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou
Furs Inc., 293 F.3d 912, 921 (5th Cir. 2002).

                                       7
satisfy the plain error standard, “there must be (1) ‘error,’ (2)

that is ‘plain,’ and (3) that ‘affects substantial rights.’”22    To

affect a defendant’s substantial rights, the error “must have

affected the outcome of the district court proceedings.”23       The

question becomes “whether there was any evidence to support the

jury verdict.”24    If these conditions are met, we may consider the

error if it “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.”25

     We need not resolve whether the statement was erroneously

admitted because Tate cannot satisfy the plain error standard of

review.    Tate provides only conclusory assertions that the error

must have affected the outcome of the case.     He does not explain

why the remaining evidence of (1) his occasional residence at the

house, (2) his knowledge that the rifle was brought to the house by

his nephew and then passed to his son, (3) the gun’s presence in

plain view, and (4) his personal mail located in the same room as

the rifle cannot support the conviction.       This accumulation of

evidence appears sufficient to support the jury’s conclusion that

Tate had knowledge of and access to the rifle.    Furthermore, Tate

does not explain why this error, even if plain and affecting

     22
       United States v. Cotton, 535 U.S. 625, 626 (2002) (internal
quotation marks omitted).
     23
          Id.
     24
          Industrias, 293 F.3d at 921.
     25
          Cotton, 535 U.S. at 626.

                                     8
substantial rights, affects the fairness, integrity, and public

reputation of judicial proceedings.

     Given that the plain error standard of review cannot be

satisfied, Tate’s second point of error does not justify reversal.

                               III

     For these reasons, we AFFIRM Tate’s conviction.




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