     Case: 11-10351     Document: 00511832304         Page: 1     Date Filed: 04/24/2012




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

                                                                            FILED
                                                                           April 24, 2012
                                     No. 11-10351
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FAIRADE DORSEY,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-190-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges
PER CURIAM:*
        Fairade Dorsey, who is proceeding pro se on appeal, pleaded guilty,
pursuant to a plea agreement, to possessing a firearm as a felon and received a
120-month sentence, which was the statutory maximum sentence as well as the
advisory guidelines sentence. He challenges his conviction and sentence.
        Dorsey first contends that his guilty plea was not supported by a sufficient
factual basis, arguing that it did not support that he constructively possessed the
gun. Because he did not object in the district court, our review is for plain error

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10351

only. See United States v. Vonn, 535 U.S. 55, 59 (2002). To establish plain error,
Dorsey must show an error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes this showing, we have the discretion to correct the error but only if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id.
      Looking at the entire record, see United States v. Vonn, 535 U.S. 55, 59
(2002); United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008), we
conclude that the factual basis was sufficient.       Dorsey admitted that he
“knowingly possessed” the gun. He also admitted that he knew that the gun was
in his house and that he would have been able to access it had he asked his
common-law wife where it was being stored. Moreover, the presentence report
(PSR) reported that the gun was found under a sofa cushion that Dorsey was
sitting on during the search of the house and that a search of the house four
months later turned up a second gun under a sofa cushion as well as a third gun.
This evidence supports an inference that Dorsey had knowledge of and access to
the gun and thus that he constructively possessed it. See Hildenbrand, 527 F.3d
at 475; United States v. Mergerson, 4 F.3d 337, 349 & n.16 (5th Cir. 1993).
      Next, Dorsey raises various challenges to the validity of the search
warrant and the legality of his arrest. However, these arguments fail because
by pleading guilty without preserving any objections that he was subject to an
illegal search or seizure, he has waived them. See United States v. Cothran, 302
F.3d 279, 286 (5th Cir. 2002).
      According to Dorsey, the district court improperly failed to consider his
objections to the PSR and make findings on the facts he disputed. Contrary to
Dorsey’s contention, he did not file timely objections to the PSR. See FED.
R. CRIM. P. 32(f)(1). Moreover, the district court did not abuse its discretion in
declining to consider objections that Dorsey raised during the sentencing
hearing. See United States v. Angeles-Mendoza, 407 F.3d 742, 749 (5th Cir.

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                                  No. 11-10351

2005); see FED. R. CRIM. P. 32(i)(1)(D). The district court explained that it would
not permit him to raise the objections because if it did so, the Government and
probation officer would not be able to respond, which was sufficient reason to
deny the request. See Angeles-Mendoza, 407 F.3d at 749 & nn. 11-12.
      Next, Dorsey argues that he was denied his right to allocute before the
district court imposed sentence. However, the district court committed no error
because it gave Dorsey ample opportunity to allocute, unequivocally informing
him of his right to do so. See United States v. Magwood, 445 F.3d 826, 829 (5th
Cir. 2006). The court invited Dorsey to make a statement on any issue that he
wished and specifically told him that he could speak on the issue of mitigation.
After Dorsey was finished with his statement, the court asked him if there was
any other statement he wished to make and he responded that there was not.
      Finally, to the extent that Dorsey seeks to raise claims of ineffective
assistance of counsel, the record is insufficiently developed to permit proper
review of these claims and they are more appropriately raised in a postconviction
motion under 28 U.S.C. § 2255. See United States v. Cantwell, 470 F.3d 1087,
1091 (5th Cir. 2006).
      The judgment of the district court is AFFIRMED. Dorsey’s motions for
bail pending appeal and for review of his state conviction are DENIED.




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