     Case: 12-30403       Document: 00512216517         Page: 1     Date Filed: 04/22/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 22, 2013
                                     No. 12-30403
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GERALD CORTEZ NEEDHAM, also known as Gerald Cortez Neeham, also
known as Cooperhead, also known as Gerald C. Needham,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:11-CR-185-1


Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Gerald Cortez Needham was convicted of one count
of illegal possession of ammunition by a convicted felon, and he was sentenced
to 120 months of imprisonment. Needham appeals, arguing that the evidence
was insufficient to support his conviction; that the district court erred in denying
his motion to suppress an arrest warrant; and that the district court erred or




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-30403

abused its discretion in imposing a sentence that was an upward departure from
the guidelines range of imprisonment.
      In his first issue, Needham contends that the evidence was insufficient to
prove that he knowingly possessed ammunition found at the house he shared
with his wife. In reviewing this issue, we will uphold the jury’s verdict if a
rational trier of fact could conclude that “the element[] of the offense [was]
established beyond a reasonable doubt, viewing the evidence in the light most
favorable to the verdict and drawing all reasonable inferences from the evidence
to support the verdict.” United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008)
(internal quotation marks and citation omitted). “[W]e do not weigh evidence or
assess the credibility of witnesses, and the jury is free to choose among
reasonable constructions of the evidence.” United States v. Ramos-Cardenas,
524 F.3d 600, 605 (5th Cir. 2008).
      Possession of a firearm may be “actual” or “constructive” and may be
proven by circumstantial evidence. United States v. De Leon, 170 F.3d 494, 496
(5th Cir. 1999). Where there is joint occupancy or control, the Government must,
in addition to showing control over the place where the item was found, present
evidence to support at least a plausible inference that the defendant knew of and
had access to the item itself. Id. at 497. This court applies “a common sense,
fact-specific approach” to a determination whether constructive possession
exists. United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).
      We have no difficulty concluding that the Government presented sufficient
evidence to establish Needham’s constructive possession. Testimony showed
that, following Needham’s arrest on unrelated state charges and a search of his
residence, a detective asked Needham about the .22 caliber rounds found in his
house; Needham admitted that he had found the bullets and sold them to kids
in his neighborhood. Additionally, following his arrest for the instant offense,
Needham told federal agents that he had moved some of the ammunition within
his house and that he knew that the ammunition was present in his house.

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                                  No. 12-30403

      While Needham may not be convicted on his own uncorroborated
confessions, the record here discloses sufficient corroboratory evidence that
“fortifies the truth of the confession.” United States v. Deville, 278 F.3d 500,
506-07 (5th Cir. 2002). For instance, there was considerable evidence that
Needham exerted some degree of dominion and control over the residence in
which the ammunition was found. See DeLeon, 170 F.3d at 496. In fact, his wife
testified that she and Needham jointly owned the house, that Needham could
“come and go as he pleases,” and that Needham had access to any place within
the house. Further, the location of the seized bullets demonstrates that the
ammunition was easily visible and/or conveniently accessible, making it less
likely that Needham could have been in the house without knowing of the
ammunition’s presence. See United States v. Smith, 930 F.2d 1081, 1086 (5th
Cir. 1991). While Needham emphasizes that no DNA evidence or fingerprints
were found linking him to the ammunition, the law does not require physical
evidence; proof of constructive possession is enough. See DeLeon, 170 F.3d at
496-97.
      Needham also challenges the district court’s denial of his motion to
suppress, insofar as the motion pertained to the arrest warrant and affidavit
that Detective B.J. Sanford prepared and submitted to a state court judge after
Needham was identified as a suspect in a triple homicide. He argues that
Sanford’s affidavit, to the extent it recited alleged statements of Andrew Burks,
was misleading and an intentional misrepresentation of the facts. In reviewing
a district court’s denial of a motion to suppress, we consider questions of law de
novo and will reverse factual findings only if they are clearly erroneous. United
States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010). We view the evidence in the
light most favorable to the prevailing party and may affirm the denial of the
motion on any basis established by the evidence. Id.
      The Fourth Amendment’s exclusionary rule will not bar the admission of
evidence obtained with a warrant later found to be invalid so long as the

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executing officers acted in reasonable reliance on the warrant. United States v.
Leon, 468 U.S. 897, 920 (1984). An officer’s reliance on a warrant is not
objectively reasonable and, therefore, he is not entitled to invoke the good faith
exception in four recognized situations, including, as relevant here, where the
judge who issued the warrant acted after being “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) (internal quotation marks and citation omitted). If proven that
certain information in the affidavit to the warrant is false, that material is
disregarded, and a determination is made whether the remaining portion of the
affidavit is sufficient to support the issuing judge’s finding of probable cause.
Franks v. Delaware, 438 U.S. 154, 171-72 (1978); United States v. Dickey, 102
F.3d 157, 161-62 (5th Cir. 1996).
      Needham has not shown that the district court erred in rejecting his claim
that the arrest warrant should have been suppressed based on alleged
intentional misrepresentations. On appeal, Needham rests his entire challenge
on the flawed assertion that, contrary to the statements in his affidavit
regarding Burks, Sanford testified that Burks did not tell him that Burks saw
Needham enter or exit the appliance store where the shootings occurred.
Sanford, however, specifically testified that (1) during the transport to the police
station, Burks stated that he observed “Copperhead” walk past him, enter the
appliance store, and then exit the store after the shooting; and (2) at the time he
signed the affidavit in support of the arrest warrant, he believed the information
contained therein to be true. The district court found this testimony to be
credible. Needham offers no other support for his argument that Sanford’s
affidavit was misleading and a misrepresentation of the facts. He thus has not
shown that the district court’s choice to believe Sanford’s version of events–a
finding entitled to deference–was clearly erroneous. See United States v. Gibbs,
421 F.3d 352, 357 (5th Cir. 2005).

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      Moreover, Needham wholly fails to challenge the district court’s
determination that, even if he had shown that the information in the affidavit
concerning Burks’s statements was false, the remaining portion of the affidavit
was sufficient to support the issuing judge’s finding of probable cause. By failing
to brief the probable cause determination, Needham has waived any challenge
to this issue. See United States v. Thames, 214 F.3d 608, 612 n.3 (5th Cir. 2000).
      Finally, Needham challenges the 120-month sentence imposed by the
district court. “[W]e review the district court’s interpretation or application of
the sentencing guidelines de novo, and its factual findings for clear error.”
United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009).
“Additionally, we review upward departures for reasonableness, which
necessitates that we review the district court’s decision to depart upwardly and
the extent of that departure for abuse of discretion.”          United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (internal quotation marks and
citation omitted).
      Needham has not shown that the district court’s decision to impose an
above-guidelines sentence under U.S.S.G. § 4A1.3(a)(1) was procedurally or
substantively unreasonable. After considering the arguments of counsel and
making several lengthy observations about the instant offense and Needham’s
“extensive” criminal history, the sentencing court cited case-specific reasons for
the upward departure, including Needham’s propensity for violence, his
propensity to flee from law enforcement, the number of times he was unable to
successfully complete probation, and the lack of deterrent effect from “lenient
state court sentences.” See § 4A1.3(a)(1), (2)(A),(E) & comment. (backg’d);
Zuniga-Peralta, 442 F.3d at 347.
      The judgment of the district court is AFFIRMED. Needham’s motion for
oral argument is DENIED.




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