     Case: 19-60050      Document: 00515298956         Page: 1    Date Filed: 02/05/2020




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

                                    No. 19-60050
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       February 5, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

TERRENCE OMAR GATES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:17-CR-150-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Terrence Omar Gates appeals his jury trial conviction and 78-month
sentence for possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1). We
affirm.
       We reject Gates’s challenge to the district court’s order denying, without
an evidentiary hearing, suppression of evidence obtained by the Jackson,
Mississippi, police after stopping the vehicle driven by Gates. We pretermit


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-60050

determination of the standard of review because Gates fails to satisfy even the
standard most favorable to him. See United States v. Mergist, 738 F.2d 645,
648 (5th Cir. 1984); see also United States v. Rodriguez, 523 F.3d 519, 525 (5th
Cir. 2008).   The record as a whole establishes that, even if omitting an
evidentiary hearing and denying reconsideration of that ruling were errors,
they were harmless errors. See Mergist, 738 F.2d at 648. The testimony of the
sole trial witness and the photographic exhibit introduced of the rear window
of Gates’s vehicle served to buttress the suppression ruling that the police had
reasonable suspicion that the vehicle’s windows were excessively tinted in
violation of Mississippi law. See United States v. Henry, 853 F.3d 754, 756, 758
(5th Cir. 2017); see also Walker v. State, 962 So. 2d 39, 42 (Miss. Ct. App. 2006).
Further, Gates has abandoned any challenge to the denial of his claim that the
poststop search of the vehicle was unwarranted and unlawful. See Brinkmann
v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Therefore, we do not disturb the suppression ruling.
      Also meritless is the claim of insufficient proof of knowing possession of
the firearm, the only element of the crime challenged by Gates. Because Gates
did not move for a judgment of acquittal, our review of the sufficiency of the
evidence presented to convict him is limited to determining “whether there was
a manifest miscarriage of justice,” which results only if (1) “the record is devoid
of evidence pointing to guilt” or (2) the evidence on a key element of the offense
is “so tenuous that a conviction would be shocking.” United States v. Burton,
324 F.3d 768, 770 (5th Cir. 2003) (internal quotation marks and citations
omitted); see FED. R. CRIM. P. 29(a). In light of the testimony of the sole witness
that he saw Gates stuffing the firearm under the front passenger seat of the
vehicle, the jury’s finding that Gates was a felon who knowingly possessed a
firearm withstands scrutiny. See United States v. Munoz, 150 F.3d 401, 416



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                                  No. 19-60050

(5th Cir. 1998). Thus, the record is not devoid of evidence, and the evidence is
not tenuous. See United States v. Ferguson, 211 F.3d 878, 885 n.4 (5th Cir.
2000); Munoz, 150 F.3d at 416.       Therefore, Gates’s conviction was not a
manifest miscarriage of justice. See Burton, 324 F.3d at 770.
      Additionally, we reject Gates’s claim, raised on appeal for the first time,
that he is entitled to a new trial under Giglio v. United States, 405 U.S. 150,
153-54 (1970), based on documents produced by the Government after trial
concerning a disciplinary matter in which the police officer who was the sole
witness at trial was reprimanded. Gates’s truncated presentation of this claim
hinges on conclusory, and therefore ineffectual, assertions concerning the
possibility of a different verdict. See Garrido-Morato v. Gonzales, 485 F.3d 319,
322 n.1 (5th Cir. 2007). But even if the conclusory nature of his claim were
overlooked, Gates is not entitled to relief on this claim. See Puckett v. United
States, 556 U.S. 129, 136 (2009). The second part of the plain error standard
requires a showing that a forfeited error was clear or obvious, i.e., not “subject
to reasonable dispute.” Puckett, 556 U.S. at 135; see United States v. Ellis, 564
F.3d 370, 377-78 (5th Cir. 2009). In view of the record as a whole, including
the photographic evidence, the question whether the jury, had it known the
information in the Giglio documents, would likely have rendered a different
verdict is at least subject to reasonable debate. See Puckett, 556 U.S. at 135;
Ellis, 564 F.3d at 377-78. Consequently, as Gates fails the second part of the
plain error standard, no further discussion of the standard is required; a
conclusion of plain error is not possible. See Puckett, 556 U.S. at 135; Ellis,
564 F.3d at 377-78.
      AFFIRMED.




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