                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 November 14, 2006

                                                          Charles R. Fulbruge III
                           No. 06-40494                           Clerk
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                                versus

                   FRANK WILLIAM WINEINGER, II,


                                                 Defendant-Appellant.

________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                        Case No. 4:05-CR-10
_________________________________________________________________


Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit
Judges.

PER CURIAM:*

          In this appeal from conviction for several narcotics- and

firearm-related   offenses,   Defendant-Appellant,   Frank   Wineinger

claims: (1) the district court improperly failed to suppress

evidence obtained during the course of a search; (2) insufficiency

of the evidence to sustain a conviction on Count Five of the

indictment; (3) error in failure to sever Count Five of the

indictment; (4) error in admission of evidence in support of Count


     *
     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this opinion should not be published and is not precedent except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.
Five       of    the    indictment;      (5)     error     in    overruling        his    Batson

challenge.            We analyze each of these claims in turn.

                 Frank Wineinger was arrested on March 5, 2003, by the

Sherman, Texas, Police Department pursuant to an outstanding felony

warrant. A search incident to arrest uncovered a loaded Dan Wesson

.357 Magnum revolver tucked in his waistband, a small amount of

methamphetamine, $567.00 in cash, and a “user’s kit” containing

drug paraphernalia in his pockets.

                 After being taken into custody, Wineinger waived his

rights and confessed to selling and using narcotics.                                     He told

Officer Jeffcoat, who conducted the interrogation, that he had been

using methamphetamine for the past six months.                         He also stated that

the residence he shared with his girlfriend (now wife), Kimberly

Hall, at 2902 Ray Drive in Denison, contained two additional

firearms and more drug paraphernalia.                        Based on his admissions,

narcotics investigators obtained a search warrant.                              Upon a search

of   the        Ray    Drive   house,     officers       discovered        marijuana,        drug

paraphernalia (including plastic bags containing methamphetamine

residue, pipes, and bongs), three firearms (including the .45 AMT

semi-automatic pistol described in Count Five2 of the superseding

indictment), paint thinner, hydrogen peroxide, red phosphorus,


       2
        Count Five alleges violation of 18 U.S.C. § 922(g)(3), possession of a firearm by an
unlawful user of a controlled substance, and states in pertinent part that “[o]n or about March 5,
2003...FRANK WILLIAM WINEINGER, II, then being an unlawful user of a controlled
substance...knowingly possessed...a firearm, to-wit: a AMT, Model Hardball, .45 caliber, semi-
automatic pistol, Serial Number A05703....”

                                                 2
pseudoephedrine tablets, and other precursor materials typically

used in the production of methamphetamine.          Photographs of these

items were introduced at trial over Wineinger’s objection.

           On September 20, 2003, Sergeant Mike Stephens received a

tip that   Wineinger   was   in   possession   of   stolen    firearms   and

methamphetamine at 2601B Hickory Street, in Sherman, and that he

was armed and had been taking methamphetamine.               Based on this

information and his discovery that Wineinger had eight outstanding

felony warrants, Sergeant Stephens and three other law enforcement

officials drove to the residence to apprehend Wineinger.

           Upon arrival, the officers were told by Kim Parker, who

occupied the house with her boyfriend Ray Sinor, that Wineinger was

inside and was somewhere in the back of the residence.                   The

officers proceeded to enter the house and systematically sweep the

rooms, during the course of which they observed several guns and

gun cases strewn around the living room floor.

           Officers discovered Wineinger hiding in a bedroom closet

at the rear of the residence.      After extricating him, they found a

stolen 9mm pistol inside of a Crown Royal whisky bag on the ground

near where Wineinger had concealed himself, and a loaded revolver

secured in a holster on his left hip.     After removing him from the

residence, officers obtained the written consent of Parker and

Sinor to search the house.         In the course of the search they

discovered the guns, gun cases, five small plastic bags containing

methamphetamine, and a black film canister containing marijuana.

                                    3
Kimberly Parker testified at trial that prior to the officers’

arrival, Wineinger entered the house, dumped the firearms behind

the sofa and sat down at the living room table where he proceeded

to bag methamphetamine.

               Wineinger was indicted on four firearm and narcotics

counts, arising out of the September 20, 2003, incident.                     In a

superseding indictment, he was charged with a fifth count, alleging

possession of a firearm by an unlawful drug user, arising out of

the March, 5, 2003, arrest.            Wineinger pled guilty to two counts

and was convicted after trial on the other three.               He was sentenced

to 73 months’ imprisonment.           He appeals his conviction.

                                I.    DISCUSSION

               The factual findings on the motion to suppress evidence

are examined for clear error, while questions of law and the

overall Fourth Amendment reasonableness of the search are reviewed

de novo.       United States v. Braithwaite, 458 F.3d 376, 379-80 (5th

Cir. 2006).         Facts supporting a suppression determination are

viewed in the light most favorable to the prevailing party, here,

the United States.         United States v. Hunt, 253 F.3d 227, 230 (5th

Cir. 2001).

               As   a   threshold    matter,   Wineinger   lacks      standing   to

contest the legality of the search unless he can establish that he

enjoyed    a    “legitimate    expectation      of   privacy”    in   the   Parker

residence at the time of his arrest.                 United States v. Ibarra,



                                         4
948 F.2d 903, 905 (5th Cir. 1991) (citing Rakas v. Illinois,

439 U.S. 128, 134, 99 S. Ct. 421, 430 (1978)).              “Fourth Amendment

rights are personal and cannot be vicariously asserted.”                United

States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1993).               Our

determination of this question depends on whether Wineinger can

establish an actual, subjective expectation of privacy in the place

searched or evidence seized, and whether that expectation of

privacy is one society would recognize as reasonable.

            Wineinger first challenges the district court’s denial of

his motion to suppress evidence found during the September 20

arrest.     He contends that because he was a guest in Kimberly

Parker’s home at the time of his arrest and had visited on several

prior occasions, he has demonstrated a legitimate expectation of

privacy under Minnesota v. Olsen, 495 U.S. 91, 110 S. Ct. 1684

(1990).     It   is   clear,    however,     that   Olsen    stands   for    the

proposition   that    not   merely     any   temporary    visitor,    but   only

overnight   social    guests,    may    under   certain     circumstances     be

entitled to Fourth Amendment standing to challenge a search when

present in another’s home.        United States v. Phillips, 382 F.3d

489, 495 (5th Cir. 2004).       Wineigner’s claim is nothing short of

extravagant when considered against the backdrop of the Supreme

Court’s desire in Olsen to “recognize and protect an expectation of

privacy in the home of another when it is based on a visit which

represents a longstanding social custom that serves functions

recognized as valuable by society.” United States v. Phillips,

                                        5
382 F.3d 489, 495 (5th Cir. 2004) (citing Olsen, 495 U.S. at 91,

110 S. Ct. at 1684).

          Wineinger next asserts that the discrepancy between the

description of the firearm alleged in Count Five of the superseding

indictment   and   the   firearm   that   the   jury   convicted   him   of

possessing constitutes a fatal variance and requires reversal of

the district court judgment.       We disagree.

          We review any variance between charges alleged in the

indictment and evidence produced at trial for harmless error.

United States v. Freeman, 434 F.3d 369, 374-75 (5th Cir. 2005).           A

constructive amendment to an indictment is reversible per se and

occurs “when the jury is permitted to convict the defendant on a

factual basis that effectively modifies an essential element of the

offense charged.”    United States v. Millet, 123 F.3d 268, 272 (5th

Cir. 1997), cert. denied, 523 U.S. 1023, 118 S. Ct. 1306 (1998).

However, not all inconsistencies between the indictment and the

evidence produced in support of crimes for which a defendant is

ultimately convicted amount to reversible error.          In such cases,

“convictions generally have been sustained as long as the proof

upon which they are based corresponds to an offense that was

clearly set out in the indictment.”         United States v. Hamilton,

992 F.2d 1126, 1130 (10th Cir. 1993) (quoting United States v.

Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 1814 (1985)).

          There is no fatal variance between the government’s proof

adduced at trial and the terms of the superseding indictment.

                                     6
Count Five, alleging possession of a firearm by an unlawful user of

a controlled substance in violation of 18 U.S.C. § 922(g)(3),

states that     on    or   about   March     5,   2003,    Wineinger     “knowingly

possessed...a firearm, to-wit: a AMT, Model Hardball, .45 caliber,

semi-automatic pistol, Serial Number A05703.”                 At the time of his

arrest Wineinger       possessed    on     his    person     only   a   .357   Magnum

revolver, not the .45 caliber AMT, which was later discovered along

with two other firearms at the residence he shared with Kimberly

Hall. Wineinger argues that because there is insufficient evidence

to prove that he possessed the .45 caliber AMT recovered from his

house, the government cannot depend on that weapon to substantiate

proof of violating § 922(g)(3) under Count Five.

           This court has previously held that a discrepancy between

the specific model of firearm alleged in a complaint and the

evidence adduced at trial to prove possession under § 922(g) is not

a fatal variance requiring a conviction to be vacated.                         Guidry,

406 F.3d   at   322    (rejecting     fatal       variance    argument     based    on

indictment charging defendant with possession of a “9mm Kurz” while

trial evidence indicated possession of a “.380-caliber pistol”);

United States v. Munoz 150 F.3d 401, 417 (5th Cir. 1998) (stating

that evidence at trial proving possession of a 20-gauge sawed-off

shotgun was not fatally at variance with an indictment charging

possession of a 12-gauge shotgun).               In any event, there was ample

evidence for the jury to conclude that Wineinger possessed both the

.45 and .357 caliber weapons.                Wineinger admitted to Officer

                                         7
Jeffcoat after his arrest that in addition to the .357 revolver,

two other weapons, including the .45 caliber AMT, were kept at this

residence.     Wineinger testified at trial that he had access to the

AMT and had handled it on previous occasions.          As a result, the

jury   could   have   reasonably   concluded   that   Wineinger   was   in

possession of the .45 caliber AMT on March 5, 2003.       The fact that

the AMT was recovered at Wineinger’s residence, and not at the

scene of his arrest, is irrelevant to the question of whether he

possessed a firearm within the meaning of § 922(g)(3).                  The

discrepancy between the indictment and trial proof was irrelevant

to the question of possession and was harmless.

           Wineinger argues that the district court’s refusal to

sever Count Five prejudiced him in violation of FED. R. CRIM. P. 14.

We review the denial of a severance motion for abuse of discretion.

United States v. Pena-Rodriguez, 110 F.3d 1120, 1128 (5th Cir.

1997).   To satisfy this standard, “the defendant bears the burden

of showing specific and compelling prejudice that resulted in an

unfair trial.”     Id. (internal quotations omitted).

           FED. R. CRIM. P. 8(a) permits joinder of offenses in a

single indictment if the offenses charged “are of the same or

similar character...or are connected with or constitute parts of a

common plan or scheme.”     Wineinger stipulated that he had been a

drug user since 2000 and his criminal history indicates a pattern

of drug use.     On both March 5 and September 20, 2005 (the dates

giving rise to Count 5 and Counts 2 and 4, respectively), Wineinger

                                    8
was apprehended by police in possession of methamphetamine and was

concealing a loaded firearm in his waistband. Wineinger has failed

to   demonstrate    that    the    government’s            theory      that    he    was   in

possession of the firearms to promote methamphetamine trafficking

was prejudicial.      That the evidence produced in support of Count

Five served to incriminate him further was a fact that did not

require the district court to sever Count Five from Counts Two and

Four under Rule 14.        The court did not abuse its discretion.                         See

United States v. Chagra, 754 F.2d 1186, 1189 (5th Cir. 1985).

           Wineinger next contends that the district court violated

FED. R. EVID. 404(b)        by    admitting          evidence     that    he     possessed

marijuana,   drug    paraphernalia,            and    articles        commonly      used   in

methamphetamine production in support of Count Five.                             We review

rulings on admissibility of evidence for abuse of discretion.

United States v. Royal, 972 F.2d 643, 645 (5th Cir. 1991).

           In this case, it matters not whether the admission of the

evidence was either intrinsic or extrinsic to the crime charged.

United States v. Williams, 900 F.2d 823, 825 (5th 1990) (internal

quotations   omitted).            Evidence           is    intrinsic      when       it    is

“inextricably intertwined” with the crime charged, or if both acts

constitute   a     “single       criminal       episode”         or     are    “necessary

preliminaries” to the crime charged.                  Id.

           The     evidence      offered       in    support      of    Count       Five   is

indistinguishable      from      other     proof          that   Wineinger       possessed

firearms to both facilitate and protect his narcotics distribution,

                                           9
and it was necessary to prove he was an unlawful user of drugs in

possession of a firearm.     The district court adequately balanced

the materiality of the evidence against its prejudicial impact and

did not err in admitting it.

            Wineinger’s final contention is that the government’s use

of peremptory strikes to remove two prospective black jurors

violated Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

The government offered race-neutral explanations for each strike.

One possible juror was related to a federal prisoner, while the

other one, a homemaker, did not fit the government’s goal of

seating   professionals   who   could   better   understand   technical

evidence.    Wineinger offers no basis on which to second-guess the

district court’s decision that these explanations were credible as

well as race-neutral.

            For the foregoing reasons, we AFFIRM the judgment of the

district court.

            AFFIRMED.




                                  10
