                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 04-16393                     April 19, 2006
                       ________________________            THOMAS K. KAHN
                                                                CLERK
                   D. C. Docket No. 03-60139-CR-WJZ


UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,


                                  versus


ANGELA MICHELE POINDEXTER,


                                                Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (April 19, 2006)

Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:
      Appellant Angela Michele Poindexter appeals her conviction and 96-month

sentence for possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Poindexter argues the district court (1) erred by denying her motion

for judgment of acquittal; (2) erred by denying her motion to suppress evidence;

and (3) committed constitutional and statutory error under United States v. Booker,

125 S. Ct. 738 (2005). We affirm.

                                  I. ANALYSIS

A.    Denial of Poindexter’s Motion for Judgment of Acquittal

      Poindexter argues the district court erred when it found the evidence was

sufficient to convict her under § 922(g)(1), and, therefore, denied her motion for

judgment of acquittal. “When evaluating a sufficiency-of-the-evidence claim, we

must view the evidence in the light most favorable to the government, drawing all

reasonable inferences in favor of the jury’s verdict.” United States v. Church, 955

F.2d 688, 693 (11th Cir. 1992).

      A defendant violates § 922(g)(1) when (1) she was a convicted felon;

(2) she knowingly possessed a firearm or ammunition; and (3) such firearm or

ammunition was in or affected interstate commerce. United States v. Jernigan,

341 F.3d 1273, 1279 (11th Cir. 2003). Under the second prong of the § 922(g)(1)

analysis, the Government must show the defendant knowingly exercised either

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“actual” or “constructive” possession over a firearm or ammunition. See United

States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998). “To prove actual

possession the evidence must show that the defendant either had physical

possession of or personal dominion over the thing allegedly possessed.

Constructive possession exists when a defendant has ownership, dominion, or

control over an object itself or dominion or control over the premises or the

vehicle in which the object is concealed.” Id. at 909 (citations omitted).

      Poindexter repeatedly asserts the Government based its case on her mere

proximity to the firearms, and she argues proximity alone cannot, as a matter of

law, give rise to a conviction under § 922(g)(1). This argument overlooks the

Government’s most damaging evidence: ATF Special Agent Patrick Kelly’s

testimony about Poindexter’s statements to him during the search of her home.

First, she admitted to Special Agent Kelly that she had possessed every firearm in

the home at one time or another. Second, she told Special Agent Kelly that she

and her husband were concerned about her safety at the self-storage unit where she

worked. Although they knew she could not legally possess a firearm, she asserted,

they nevertheless decided to place a handgun in the glove compartment of an

Isuzu Rodeo. Poindexter identified the Isuzu Rodeo as belonging to her and

produced the keys from her purse when requested to do so. Third, she also

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admitted handling the gun when she moved items in and out of the Isuzu Rodeo’s

glove compartment, and documents belonging to her were found resting beneath

the gun. The jury thus had sufficient evidence to find Poindexter knowingly

exercised physical possession of or personal dominion over one or more firearms

(i.e., actual possession) and/or knowingly exercised dominion or control over the

vehicle in which the handgun was concealed (i.e., constructive possession).

Accordingly, the district court did not err in denying her motion for judgment of

acquittal.

B.    Denial of Motion to Suppress Evidence

      Poindexter next contends the district court erred by denying her motion to

suppress evidence. “We review findings of fact on a motion to suppress evidence

for clear error; the district court’s application of the law to those facts is subject to

de novo review.” United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996).

All facts are construed in the light most favorable to the prevailing party. United

States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002).

      Specifically, Poindexter argues the search warrant was not supported by

probable cause because the underlying affidavit (1) did not describe conduct that

was criminal in nature; (2) did not indicate Poindexter’s home contained evidence

of the alleged crime; (3) relied on stale information; and (4) did not establish the

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veracity of the individuals on whose information the search warrant relied. In our

Circuit, “probable cause exists if facts within the magistrate’s knowledge and of

which he had reasonably trustworthy information would warrant a man of

reasonable caution in the belief that a crime was committed and that evidence is at

the place to be searched. A magistrate’s decision that probable cause exists is

conclusive absent arbitrariness.” United States v. Betancourt, 734 F.2d 750, 754

(11th Cir. 1984) (quotations and citations omitted).

       After carefully reviewing the record, we conclude the search warrant

affidavit sets forth ample facts—each of which is based on reasonably trustworthy

information—to warrant the magistrate judge’s finding of probable cause.

Poindexter’s arguments on this issue therefore must fail.1

C.     Booker Error

       Finally, Poindexter asserts the district court erred under Booker by applying

the Sentencing Guidelines as mandatory and enhancing Poindexter’s offense level

based upon facts that were not submitted to the jury. As the Government


       1
           Poindexter also argues the district court abused its discretion when it denied her motion
for an evidentiary hearing pursuant to Franks v. Delaware, 98 S. Ct. 2674 (1978). See United
States v. Gay, 251 F.3d 950, 951 (11th Cir. 2001) (stating our circuit reviews the denial of an
evidentiary hearing for abuse of discretion). After carefully reviewing the record, we determine
the district court did not abuse its discretion when it denied Poindexter’s Franks evidentiary
hearing; thus, Poindexter’s contentions on this issue lack merit.


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concedes, the district court committed constitutional and statutory error under

Booker. (Red Brief at 45). A district court’s error under Booker is harmless

beyond a reasonable doubt, however, where the district court stated it would

impose the same sentence in an advisory Guidelines system. See United States v.

Robles, 408 F.3d 1324, 1327 (11th Cir. 2005). At sentencing in this case, the

district court made such a statement: “If the United States Supreme Court decides

that the federal Sentencing Guidelines are unconstitutional . . . I want the minutes

to note . . . that it is the court’s intention to impose the exact same sentence under

the statute as I have imposed here today.” Thus, our precedent squarely precludes

Poindexter’s arguments on this issue.

                                 II. CONCLUSION

      For the foregoing reasons, we affirm Poindexter’s conviction and 96-month

sentence for possessing a firearm as a convicted felon, in violation of § 922(g)(1).

      AFFIRMED.




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