                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    UNITED STATES COURT OF APPEALS
                                                          September 18, 2007
                         FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk


                                06-30954
                            Summary Calendar



     UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                                  v.

     SAMMY DAVIS, JR,

                                         Defendant-Appellant.



         Appeal from the United States District Court for the
               Western District of Louisiana, Lafayette



Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant, Sammy Davis, Jr. (Davis), appeals his

conviction for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1).     Concluding that the district

court properly denied his motion to suppress and that the evidence

is sufficient to sustain his conviction, we AFFIRM.

     I.     BACKGROUND

     In 1999, Stevie Charlot began buying crack cocaine from Davis

     *
       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this opinion should not be published and is not precedent except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.
and his extended family in Church Point, Louisiana.                   Charlot

later began working as a paid informant for the Acadia Parish Drug

Task Force (APDTF).           On October 22, 2001, Charlot contacted an

APDTF narcotics investigator, Agent Brian Hundley, and informed him

that Davis’s brother, Edward Colomb, was in possession of a large

amount of crack cocaine.          Based on this information, the agents

planned to have Charlot conduct a controlled drug transaction that

day at 847 South Broadway, the home of Davis’s mother, Mary Colomb.

       Agent Hundley and another APDTF agent took Charlot to a

secluded area near the Colomb residence.             The agents gave Charlot

$50 to purchase the drugs and an audio transmitter that was then

hidden   in   a   pack   of    cigarettes    in   Charlot’s   sock.     Charlot

demonstrated that his pockets were empty by turning them inside

out.   Charlot and the agents agreed that, after the drug buy, they

would meet at a nearby church.

       Charlot exited the vehicle, and the agents observed him walk

to the yard of the Colomb residence but a fence blocked their view

of his entrance into the house.             After a few seconds, the agents

heard Mary Colomb’s voice over the transmitter.

       Charlot asked to purchase $50 worth of crack (“score a 50"),

and Mary responded that he would have to wait because Edward was

not there.    Although Mary patted down Charlot, she did not discover

the transmitter in the cigarette pack.              Edward arrived, and the

agents heard his voice over the transmitter.             Charlot paid Edward

$50 and left.     Charlot met the agents as planned and gave them the

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three rocks of crack and the transmitter.1

     The agents then obtained a search warrant for the Colomb

residence and executed it that night. Davis, Mary, Mary’s husband,

and Davis’s sister were at the home when the agents executed the

search warrant.   Davis was in a rear bedroom of the house.           After

Agent Reginald Guidry escorted Davis from the bedroom to a sofa in

the living room, other agents searched the house.              Agent Hebert

found a 16-gauge Mossberg shotgun in a closet in the rear bedroom.

Agent Guidry asked Davis who owned the gun, and Davis admitted that

it was his gun.   He also admitted that his bedroom had the shotgun

in the closet.

     In May 2002, Davis was charged by indictment with several

counts of trafficking in cocaine and one count of possession of a

firearm by a convicted felon.     He pleaded not guilty and filed a

motion to suppress, contending that affiant had deliberately or

recklessly misled the issuing state judge.          On August 16, the

magistrate judge conducted a hearing on the motion.        On August 22,

the prosecutor sent a letter to defense counsel advising that Agent

Hundley had   been   mistaken   when   he   testified   that    the   Colomb

residence was surrounded by a privacy fence; instead, it was

surrounded by a chain link fence.

     On September 11, the magistrate issued a report recommending

that the motion to suppress be denied.       On October 15, Davis filed

     1
       The APDTF paid Charlot for conducting this controlled drug
transaction.

                                   3
objections based primarily on Agent Hundley’s mistaken testimony

regarding the fence.      As a result of the objections, the magistrate

judge conducted a second evidentiary hearing to determine whether

the mistaken testimony was material and whether it affected the

court’s credibility determination.           The magistrate issued a second

report recommending denial of the motion to suppress, concluding

that    any    errors    were   immaterial     and   “innocent   and   easily

explained.”        Over Davis’s objections, the district court adopted

the findings of the magistrate and denied the motion to suppress.

       Subsequently, Davis filed a motion to sever the instant charge

of possession of a firearm by a convicted felon from the remaining

five charges in the indictment.             Ultimately, the district court

granted the motion to sever.         Davis was tried on the sole charge of

possession of a firearm by a convicted felon.            After a jury found

him guilty, the district court imposed a 15-month sentence of

imprisonment.       Davis appeals.

       II.    ANALYSIS

              A.    Motion to Suppress

       Davis argues that the district court erred in denying his

motion to suppress.       “Our review of a district court’s denial of a

motion to suppress evidence seized pursuant to a warrant is limited

to (1) whether the good-faith exception to the exclusionary rule

applies, and (2) whether the warrant was supported by probable

cause.”      United States v. Alix, 86 F.3d 429, 435 (5th Cir. 1996).



                                        4
We need not address the probable cause inquiry if the good-faith

exception applies.      Id.

       Findings of fact are accepted unless clearly erroneous or

based on an incorrect view of the law.            United States v. Randall,

887 F.2d 1262, 1265 (5th Cir. 1989).            A clearly erroneous finding

is one that is not plausible in light of the record viewed in its

entirety.      Anderson v. City of Bessemer City, 470 U.S. 564, 573-74

(1985).

       Davis     asserts      that   Agent       Hundley        made   material

misrepresentations regarding the informant’s reliability in his

affidavit in support of the search warrant.            This Court will uphold

a police officer’s good-faith reliance on a warrant unless “the

issuing-judge was misled by information in an affidavit that the

affiant knew was false or would have known was false except for his

reckless disregard of the truth.”            United States v. Mays, 466 F.3d

335, 343 (5th Cir. 2006), cert. denied,               127 S.Ct. 1313 (2007)

(citation and internal quotation marks omitted).

       Specifically, Davis asserts that Agent Hundley’s affidavit

indicates that he had past dealings with Charlot that demonstrated

Charlot’s reliability.        Davis states that this is belied by Agent

Hundley’s subsequent testimony that this was the first time he

worked with Charlot.       As the government responds, although Hundley

testified that this transaction was the first time he had worked

with   Charlot,    he   had   learned       through   another    officer   about


                                        5
Charlot’s reliability on other cases.              Indeed, there was evidence

of Charlot’s work as an informant resulting in the seizure of drugs

on other occasions.          The district court did not clearly err in

finding no false statements in the affidavit regarding Agent

Hundley’s representation of Charlot’s reliability.

      Davis   also   points     to   an       affidavit    and    a   tape-recorded

statement made by Charlot in which he changed his story, claiming

that he did not buy any drugs at the Colomb residence.                     However,

the   magistrate     judge    was    fully      aware     of    the   contradictory

statements made by Charlot.          The magistrate judge concluded that

Charlot’s motive for changing his statement was “to keep his cover”

and “insure    his    safety.”       The        district       court’s   credibility

determinations are quite plausible and thus not clearly erroneous.

      Additionally, Davis contends that because the affidavit did

not provide that Charlot was a convicted felon and a crack addict,

the affidavit did not provide probable cause.                  Davis has failed to

show that Agent Hundley’s statements were false or that he had

reckless disregard for the truth.                Thus, because Agent Hundley

acted in good faith, we need not reach the inquiry regarding

probable cause.      Alix, 86 F.3d at 435.          Nonetheless, we find that

there was probable cause in light of the monitored, controlled drug

transaction at the Colomb residence.                    Cf. Mays, 466 F.3d 343

(finding probable cause when informant had made controlled buys at

the residence and officer independently corroborated information


                                          6
provided by informant through audio surveillance).                    The district

court properly denied the motion to suppress.

                  B.     Sufficiency of the Evidence

       Davis argues that the evidence is insufficient to sustain his

conviction for felon in possession of a firearm.                Davis admitted to

Agent Guidry that it was his gun found in his bedroom closet at his

parents’ house.        Nonetheless, Davis contends that his conviction

cannot be sustained on the basis of his uncorroborated confession.

       The government asserts, and Davis has not disputed, that no

motion for a judgment of acquittal was made.                  Thus, we review the

evidence only for a manifest miscarriage of justice. United States

v.    Avants,   367    F.3d   433,   449       (5th   Cir.   2004).     A   manifest

miscarriage of justice has been shown where the record is devoid of

evidence pointing to guilt or contains evidence on a key element of

the offense that is so tenuous that a conviction would be shocking.

Id.

       To obtain a conviction for felon in possession of a firearm,

the government must prove that the defendant (1) has been convicted

of a felony; (2) possessed a firearm in or affecting interstate

commerce; and (3) knew that he was in possession of the firearm.

United States v. Dancy, 861 F.2d 77, 81 (5th Cir. 1988).                    The only

element Davis disputes is that he was in possession of the shotgun.

       Davis correctly argues that a defendant may not be convicted

based solely on his own uncorroborated confession.                    United States


                                           7
v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995).       Nonetheless, “[t]he

corroborative evidence alone need not prove the defendant’s guilt

beyond a reasonable doubt, nor even by a preponderance, as long as

there is substantial independent evidence that the offense has been

committed, and the evidence as a whole proves beyond a reasonable

doubt that the defendant is guilty.... [E]xtrinsic proof [is]

sufficient which merely fortifies the truth of the confession,

without   independently   establishing    the   crime   charged.”   Id.

(quoting United States v. Garth, 773 F.2d 1469, 1479 (5th Cir.

1985)).

     Here, the evidence shows that during the execution of the

search warrant the officers found Davis in a rear bedroom, and the

shotgun was in the closet.     Also, there was evidence that Davis

“use[d] the house as [his] own.”       Such evidence fortifies Davis’s

confession.   We conclude that Davis has not shown that the record

is devoid of evidence pointing to guilt or contains evidence on a

key element of the offense that is so tenuous that a conviction

would be shocking.

     The district court’s judgment is AFFIRMED.




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