                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 13-4577
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    ERIC CHAMBERS,
                                                           Appellant
                                     _______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                  (D.C. No. 12-cr-00102)
                       District Judge: Hon. William W. Caldwell
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 21, 2015

           Before: FISHER, JORDAN, and GREENAWAY, JR., Circuit Judges.

                                 (Filed: January 22, 2015)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

           Eric Chambers appeals both his conviction in the United States District Court for

the Middle District of Pennsylvania for possession of a firearm by a convicted felon and

the resulting 200-month prison sentence. We will affirm.

I.     Background

       In September 2011, Chambers was allegedly involved in an attempted homicide in

Harrisburg, Pennsylvania. After the victim identified Chambers as the shooter, police

sought and obtained a warrant for his arrest. On January 9, 2012, the Harrisburg police

received an anonymous tip that Chambers was in nearby Swatara Township. 1

Investigation determined that Chambers was at the Red Roof Inn on Eisenhower

Boulevard in Room 151, which had been rented by Takia Jones, one of Chambers’s

friends. Officers arrived at the scene, summoned Chambers out of the hotel, and he

exited without incident. At the time of the arrest, the only other occupant of Room 151

was Tanisha Washington, another of Chambers’s friends. Harrisburg police officers then

sought and obtained a search warrant for the hotel room and Chambers’s car. In the

underlying affidavit, officers averred that the victim of the 2011 Harrisburg shooting had

       1
          Although Chambers says that the Swatara Police Department received the tip, a
search warrant affidavit states that the “Harrisburg Police received information” about
Chambers. (Compare Opening Br. at 8 (citing App. at 24) with App. at 23.) The District
Court’s opinion on Chambers’s suppression motion also states that “a confidential
informant told Harrisburg police that Defendant was in a hotel room in Swatara
Township.” (App. at 28.) Elsewhere, however, the record indicates that “Corporal
Milsteen” of the Swatara Police Department “informed D platoon of an intelligence call,”
(App. at 24) and that Officer Scott Gibson of the Swatara Police Department testified at
trial that he was “told of an intelligence call” regarding Chambers. (App. at 81.)
Ultimately, the identity of the police department that received the tip is irrelevant to the
issues before us.
                                               2
identified Chambers as the shooter, that there was an active warrant for his arrest, and

that Chambers had been arrested at the Red Roof Inn. A fair implication of the affidavit

was that the gun had never been recovered.

       During the ensuing search of the hotel room, the police located a Ruger .40 caliber

semi-automatic firearm in a bag of potato chips in a trash can. The gun was loaded with

nine rounds of ammunition in the magazine and one round of ammunition in the

chamber. The police also recovered from the trash can another magazine loaded with ten

rounds of ammunition. A holster fitting the gun was located in Chambers’s car, which

had been parked outside the hotel room.

       While in prison after his arrest, Chambers made a number of recorded phone calls

to his girlfriend Kenya Scott, in which he made coded references to the gun and his

unsuccessful attempts to hide it after the police arrived. A grand jury returned an

indictment charging Chambers with possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922.2 Chambers filed a motion to suppress the firearm. The

District Court denied that motion without a hearing, and Chambers sought

reconsideration, which was also denied. Following a two-day jury trial, he was

convicted. He then filed a motion for judgment of acquittal, challenging the sufficiency

of the evidence adduced at trial. The District Court denied that motion too. After

conducting a sentencing hearing and concluding that the Armed Career Criminal Act

enhancement applied, the Court sentenced Chambers to 200 months in prison.


       2
        The indictment also charged Chambers with one count of receiving stolen
firearms, but the government dismissed that charge prior to trial.
                                             3
       Chambers timely appealed, challenging the denial of his motion to suppress and

motion for judgment of acquittal, and the sentence imposed.

II.    Discussion 3

      A.      The Motion to Suppress

       Chambers argues that the District Court improperly denied his motion to suppress

because there was insufficient probable cause to support the warrant, the police acted

outside their authority in obtaining the warrant, and the Court erred in denying an

evidentiary hearing on the motion. Those arguments are unpersuasive.

       A search warrant is valid if supported by probable cause that particular contraband

or evidence will be found in a particular place. United States v. Golson, 743 F.3d 44, 53

(3d Cir. 2014). A court must “uphold the warrant as long as there is a substantial basis

for a fair probability that evidence will be found.” United States v. Conley, 4 F.3d 1200,

1205 (3d Cir. 1993). Here, although the information contained in the affidavit was thin,

the magistrate was presented with sufficient evidence to conclude that there was a fair


       3
         The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction pursuant to 28 U.S.C. § 1291. We review the denial of a motion to suppress
for clear error as to the underlying facts, but exercise plenary review as to the District
Court’s legal conclusions. United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011).
We review the denial of a hearing on a suppression motion for an abuse of discretion and
will reverse “only in rare circumstances.” United States v. Hines, 628 F.3d 101, 104-05
(3d Cir. 2010). We review de novo the denial of a motion for acquittal, viewing the
evidence in the light most favorable to the government, and we will sustain the verdict if
any rational trier of fact could have found the essential elements of a crime beyond a
reasonable doubt. United States v. Freeman, 763 F.3d 322, 343 (3d Cir. 2014); United
States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998). Finally, we exercise plenary review
over a challenge to the application of the Armed Career Criminal Act – the sole
sentencing issue raised on appeal. United States v. Jones, 332 F.3d 688, 690-91 (3d Cir.
2003).
                                             4
probability that the weapon related to the September 2011 shooting would be found in

Room 151 – namely, that Chambers had shot another man with a firearm that had never

been recovered and it was reasonable to assume that he would have kept the firearm with

him. United States v. Jones, 994 F.2d 1051, 1056 (3d Cir. 1993) (search warrant for

residence seeking firearms was supported by probable cause because “firearms, are …

the type[] of evidence likely to be kept in a suspect’s residence”); United States v.

Steeves, 525 F.2d 33, 38 (8th Cir. 1975) (“[P]eople who own pistols generally keep them

at home or on their persons”); Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973)

(“A very likely place to find [the pistols] would either be on the persons of the assailants

or about the premises where they lived.”).

       Second, Chambers argues that the police exceeded their authority under the

Municipal Police Jurisdiction Act, 42 Pa. Cons. Stat. Ann. § 8953, thereby invalidating

the search warrant, because the shooting occurred in Harrisburg, was investigated by

Harrisburg police, and Harrisburg police obtained the search warrant, but the warrant was

approved by a Swatara magistrate and executed in Swatara Township. Even if

Chambers’s interpretation of the Municipal Police Jurisdiction Act were correct,

however, he does not explain how a violation of state law would be relevant to the federal

constitutional analysis required here. Cf. Virginia v. Moore, 553 U.S. 164, 176-78 (2008)

(holding that state law is immaterial for Fourth Amendment search analysis and refusing

to suppress evidence obtained illegally under state law after warrantless arrest because

“the arrest rules that the officers violated were those of state law alone, and as we have

just concluded, it is not the province of the Fourth Amendment to enforce state law. That

                                              5
Amendment does not require the exclusion of evidence obtained from a constitutionally

permissible arrest.”).

       Finally, Chambers’s argument that the District Court erred in not holding a

hearing on his suppression motion fails because – contrary to his protestations to the

contrary – there were no material facts in dispute. United States v. Voigt, 89 F.3d 1050,

1067 (3d Cir. 1996) (to warrant a suppression hearing, a defendant’s moving papers must

demonstrate a colorable claim for relief – that is, “[t]here must be issues of fact material

to the resolution of defendant’s constitutional claim”). The questions of “material fact”

to which Chambers points – who else had access to Room 151, which police force

received the anonymous tip, and the contents of that tip – relate primarily to the

sufficiency of evidence at trial, but do not undermine the fair probability that the weapon

used in the attempted homicide would be located in the hotel room.

      B.      The Motion for a Judgment of Acquittal

       Chambers’s argument that there was insufficient evidence to establish constructive

possession of the handgun and thus to convict him also fails. Chambers says that the

evidence shows, at most, mere proximity to the gun, and he notes that his nephew and

another man named “Mighty” had been in the room at some earlier point. But, there was

more than mere proximity in this case.

       “‘A person who, although not in actual possession, knowingly has both the power

and the intention at a given time to exercise dominion or control over a thing, either

directly or through another person or persons, is then in constructive possession of it.’”

United States v. Blackston, 940 F. 2d 877, 883 (3d Cir. 1991) (quoting Black’s Law

                                              6
Dictionary 1047 (5th ed. 1979)). While it is true that dominion and control are not

established by mere proximity or mere association with a person who controls the item,

id., the government introduced evidence tying Chambers to the weapon. The gun was

found in an empty bag of potato chips purchased for Chambers and in a hotel room that

Chambers occupied. Ms. Jones, the woman who rented the room, testified that she

bought the bag of chips for Chambers. The other occupant of the room at the time of the

arrest, Ms. Washington, is not suggested by anyone to have possessed the gun, and both

Ms. Washington and Ms. Jones testified under oath that neither the gun nor the holster

belonged to them. Chambers’s nephew also testified that the gun was not his. Most,

significantly, the government introduced recorded phone conversations in which

Chambers referred to the gun as “the toy,” stating that he had it in the room, that it was

listed on the inventory slip, that he was arraigned and charged because of “the toy,” and

that he attempted to hide it but that the police found it. The government also introduced a

holster that had been found in Chambers’s car and that fit the gun. Viewing the evidence

in the light most favorable to the government, a rational trier of fact could certainly have

found that Chambers constructively possessed the gun. See United States v. Dent, 149

F.3d 180, 187 (3d Cir. 1998). Thus, the District Court properly denied Chambers’s

motion for a judgment of acquittal.

      C.      The Legality of Chambers’s Sentence

       Chambers challenges the application of the Armed Career Criminal Act

enhancement in his case, which resulted in a 15-year mandatory minimum term of

imprisonment. He advances three arguments: (1) he did not have three prior “serious”

                                              7
drug convictions; (2) the predicate offenses included offenses more than 15 years old;

and (3) the facts giving rise to the Armed Career Criminal Act enhancement should have

been submitted to a jury. All three are meritless.

       “The Armed Career Criminal Act ... provides that a defendant convicted of

possession of a firearm by a convicted felon, in violation of [18 U.S.C.] § 922(g), is

subject to a mandatory sentence of 15 years of imprisonment if the defendant has three

prior convictions ‘for a violent felony or a serious drug offense.’” James v. United

States, 550 U.S. 192, 195 (2007) (quoting 18 U.S.C. § 924(e)(1)). The Act defines a

serious drug offense as “an offense under State law, involving manufacturing,

distributing, or possessing with intent to manufacture or distribute, a controlled substance

... for which a maximum term of imprisonment of ten years or more is prescribed by

law.” 18 U.S.C. § 924(e)(2)(A)(ii); accord United States v. Gibbs, 656 F.3d 180, 182 (3d

Cir. 2011).

       Here, the District Court determined that Chambers had three serious drug

convictions, namely two prior convictions for possession with the intent to deliver crack

cocaine in 1998 and one conviction for the unlawful delivery of crack cocaine in 1999.

Under Pennsylvania law, possession with the intent to deliver crack cocaine and unlawful

delivery of crack cocaine are punishable by a maximum term of imprisonment of ten

years. 35 Pa. Cons. Stat. Ann. § 780-113(f)(1.1). Those convictions are thus “serious”

drug offenses under 18 U.S.C. § 924(e). Chambers argues that because the convictions

involved small drug quantities and because he received relatively short sentences, they do

not meet the “common sense understanding” of “serious.” That argument is foreclosed

                                             8
by the unambiguous text of the statute, which provides the definition we must apply.

United States v. Pawlowski, 682 F.3d 205, 211 (3d Cir. 2012) (“Where the language is

plain and unambiguous, ‘the sole function of the court is to enforce it according to its

terms.’” (quoting United States v. Sherman, 150 F.3d 306, 313 (3d Cir. 1998))).

Accordingly, the District Court properly concluded that the Armed Career Criminal Act

enhancement applies.

       Chambers also argues that two of his convictions are outside the 15-year look-

back period for criminal history and thus should not have been used to calculate his

criminal history category score. He was released from the initial prison term on each of

those offenses more than 15 years ago, but because parole was revoked on both offenses,

his re-incarceration extended into the 15-year look-back period. U.S.S.G. § 4A1.1, App.

Note 1; U.S.S.G. § 4A1.2(e).

       Finally, Chambers’s argument that the jury, rather than the District Court, should

have found facts relating to his prior convictions for sentencing purposes is undermined

by controlling precedent. In Apprendi v. New Jersey, the Supreme Court held that

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. 466, 490 (2000) (emphasis added); see also

Almendarez-Torres v. United States, 523 U.S. 224, 246-47 (1998) (prior conviction that

increases maximum penalty need not be treated as element of offense and proven to a

jury); United States v. Blair, 734 F.3d 218, 227 (3d Cir. 2013) (“Alleyne do[es] nothing to



                                              9
restrict the established exception under Almendarez-Torres that allows judges to consider

prior convictions.”). The Court was thus fully empowered to make the findings it did.

III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of conviction of the

District Court.




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