                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS                 October 21, 2003
                         FOR THE FIFTH CIRCUIT
                        _______________________                     Charles R. Fulbruge III
                              No. 02-41744                                  Clerk
                        _______________________

                       UNITED STATES OF AMERICA,

                           Plaintiff-Appellee

                                     v.

                               DAVID HINOJOSA,

                          Defendant-Appellant.

                          --------------------
              Appeal from the United States District Court
                   for the Southern District of Texas
                             --------------------

Before HIGGINBOTHAM, STEWART and PRADO, Circuit Judges.

PRADO, Circuit Judge.
      Following a jury trial, Appellant David Hinojosa was convicted
on one count of being a felon in possession of 14 rounds of
ammunition, in violation of 18 U.S.C. §§ 922 (g)(1) and 924 (a)(2).
He   raises   three   issues   on   appeal.      In   his   first     issue,    he
challenges the denial of his motion to suppress, in which he argued
that the affidavit used to obtain a warrant to search his house did
not establish probable cause. In his second issue, he argues that
the government introduced insufficient evidence to show that he
possessed the ammunition. In his third issue, Hinojosa argues that
the district court erred in determining that he qualified as an
“armed career criminal” under 18 U.S.C. §§ 924(e)(1).
      Factual Background
      In January 2002, federal agents obtained a warrant to search
a house that Hinojosa shared with Linda Sorsby.              When conducting
the   search    of    the    house,   officers      found   fourteen    rounds   of
ammunition in Hinojosa’s and Sorsby’s shared bedroom. Seven rounds
were in a night stand, and seven rounds were in a safe.                  Hinojosa,
who had three previous convictions, was charged with being a felon
in    possession     of     ammunition.       After    Hinojosa    unsuccessfully
challenged the warrant, the case proceeded to trial, after which a
jury convicted him.          The district judge, applying the Armed Career
Criminal Act, sentenced Hinojosa to 235 months in prison and
assessed a $15,000 fine.
       Motion to Suppress
       In the district court, Hinojosa filed a motion to suppress,
arguing that the search warrant was invalid.                   In particular, he
pointed to some factual errors in the warrant affidavit, and he
also presented affidavits from two of the confidential informants
whose testimony had been used as support for the warrant.                 In these
new affidavits, the informants recanted their earlier testimony.
According      to    Hinojosa,    the     errors      and   the   new   affidavits
established that the warrant was not supported by probable cause
and that the officer had not acted in good faith in obtaining the
warrant.    The district court denied Hinojosa’s motion.
       This Court uses a two-step process to review a district
court’s denial of a motion to suppress when that motion involves a
search warrant.       United States v. Cavazos, 288 F.3d 706, 709 (5th
Cir. 2002).     First, we determine whether the good faith exception
to the exclusionary rule applies.             Id.     If this exception applies,
we end our analysis and affirm the district court’s ruling. Id. If
the good faith exception does not apply, we proceed to the second


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step and examine whether the magistrate had a substantial basis for
finding probable cause. Id. Thus, we only examine probable cause if
the good faith exception does not apply.                  United States v. Cherna,
184 F.3d 403, 407 (5th Cir. 1999).
     Under the good faith exception, evidence obtained as a result
of an officer’s objectively reasonable reliance on a warrant is not
suppressed, even if the warrant is later invalidated. Cherna, 184
F.3d at 407.    Whether the officer’s reliance was reasonable is a
legal question that we review de novo. Cavazos,288 F.3d at                         709.
     Additionally,         the   good   faith       exception       will   not   protect
evidence obtained by a warrant when the warrant affidavit contained
an intentional false statement or a statement that was made with
reckless disregard for its truth. Cavazos, 288 F.3d at 709-10.                        The
defendant challenging the warrant bears the burden of establishing
these intentional or reckless false statements by a preponderance
of the evidence. Id.
     Although Hinojosa argues that the government agent’s actions,
when viewed in totality, establish a lack of good faith, his
arguments are unpersuasive. At the hearing, Hinojosa failed to
establish    that    any     false      statements          were    intentionally     or
recklessly   made.         Further,     we       conclude    that    reliance    on   the
challenged warrant was objectively reasonable.                       Thus, we do not
need to examine probable cause.
     Accordingly, the good faith exception applies and the trial
court properly denied Hinojosa’s motion to suppress.
     Sufficiency of the Evidence
     Hinojosa       also     argues     that        the     government      introduced


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insufficient evidence to prove that he possessed the ammunition.
We review a challenge to the sufficiency of the evidence by
examining whether a “reasonable trier of fact could have found that
the evidence established guilt beyond a reasonable doubt.”              United
States v. Smith, 296 F.3d 344, 346 (5th Cir. 2002).           In doing this,
we must look at the evidence in the light most favorable to the
verdict and make all reasonable inferences supporting the verdict.
United States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001).
       Under 18 U.S.C. § 922(g)(1), the government must prove that
the defendant     was   previously    convicted   of   a    felony,    that    he
knowingly possessed ammunition, and that this ammunition traveled
in or affected interstate commerce.        United States v. De Leon, 170
F.3d 494, 497 (5th Cir. 1991).       Possession of the ammunition may be
actual    or   constructive.    Id.       Both   parties     agree    that    the
government only attempted to prove constructive possession in this
case.
       This Court has defined constructive possession as ownership,
dominion, or control over the contraband, or as dominion over the
premises in which the contraband is found.                 United States v.
Mergerson, 4 F.3d 337, 349 (5th Cir. 1993); De Leon, 170 F.3d at
497.     Although a defendant’s exclusive possession of a house may
establish his dominion and control over contraband found there, his
joint occupancy of a house will not, by itself, support the same
conclusion.      Mergerson, 4 F.3d at 349; see also United States v.
Fields, 72 F.3d 1200, 1212 (5th Cir. 1996).                Thus, in cases of
joint occupancy, we will find constructive possession only when
there is “some evidence supporting at least a plausible inference


                                      4
that the defendant had knowledge of and access to” the illegal
item.    Mergerson, 4 F.3d at 349.
      At trial, the government presented evidence linking Hinojosa
to the ammunition by showing that items belonging to Hinojosa were
found    in   the   same   safe     that    contained       seven   rounds    of   the
ammunition.      These items included a watch engraved with Hinojosa’s
initials, a knife with Hinojosa’s name engraved on it, and a credit
card with Hinojosa’s name and the name of his business printed on
it.     Thus, although some evidence suggested that the ammunition
belonged to Linda Sorsby, who shared the bedroom with Hinojosa,
other evidence connected Hinojosa with the ammunition.                  Therefore,
viewing    the   evidence    in     favor      of    the   verdict,   the    evidence
presented at trial supports a plausible inference that Hinojosa had
knowledge of, and access to, the ammunition.
      Armed Career Criminal Status
      Hinojosa      also   argues    that      the   district   court   improperly
enhanced his sentence under USSG § 4B1.4(b)(3)(B), which implements
the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). We review
a district court’s application and interpretation of the Sentencing
Guidelines de novo and its findings of facts for clear error.
United States v. Yanez-Huerta, 207 F.3d 746, 747 (5th Cir. 2000).
      ACCA imposes a mandatory minimum fifteen-year sentence on a
defendant who has been convicted under the felon-in-possession-of-
a-firearm statute (§922(g)) and who has three previous convictions
for a violent felony or a serious drug offense.                 18 U.S.C. §924(e).
The relevant definition of “serious drug offense” is:

      an offense under State law, involving manufacturing,


                                           5
     distributing, or possessing with intent to manufacture or
     distribute, a controlled substance (as defined in section
     102 of the Controlled Substances Act (21 U.S.C. §802)),
     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)
     In 1993, Hinojosa was convicted in state court for delivery of
.84 grams of cocaine. At that time, the maximum sentence under
Texas law for this crime was 99 years. Tex. Health & Safety Code §
481.106(a), repealed, Acts 1993, 73d Leg. ch. 900, §2.07, eff.
Sept. 1, 1994. After Hinojosa’s conviction, the law was amended,
and it now provides a maximum sentence of two years imprisonment
for delivery of less than one gram of cocaine.    Tex. Penal Code §
12.35. Hinojosa argues that his 1993 state conviction for delivery
of .84 grams of cocaine was not a “serious drug offense” because at
the time of his federal sentencing the maximum state sentence for
this offense was not at least 10 years, as required by §924
(e)(2)(A)(ii).
     Hinojosa relies on United States v. Morton, 17 F.3d 911 (6th
Cir. 1994) as support for this argument.      In Morton, as in this
case, the state revised its drug laws between the time of the
defendant’s state convictions and his federal sentencing. Under the
revised laws, Morton’s convictions would be punishable by a maximum
of six years imprisonment. Id. at 914.     The court determined that
ACCA’s   “prescribed by law” language was ambiguous because it did
not specify a time period.   Id. at 915.    Based on this ambiguity
and the rule of lenity, the Morton court concluded that courts
should examine the maximum sentence for a previous conviction at
the time of federal sentencing, not at the time of the conviction.


                                   6
Id.
      This case is distinguishable from Morton, however. Texas’
revised sentencing scheme specifically provides that the revised
sentences do not apply to crimes committed before the effective
date of the revisions. Section 2.08-09 Act of May 29, 1993, 73d
Leg. ch. 900, §2.08,2.09, eff. Sept. 1, 1994, Tex. Gen. Laws 3714.
Anyone who, like Hinojosa, delivered less than one gram of cocaine
before the amendment would still receive the higher punishment.
Thus, even under Morton, Hinojosa’s previous convictions would be
for “serious drug offenses” because if he were sentenced by the
state court for those crimes today, he would still be subject to a
maximum term of at least ten years.
      AFFIRMED.




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