     Case: 09-10631     Document: 00511046010          Page: 1    Date Filed: 03/09/2010




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

                                                  FILED
                                                                            March 9, 2010
                                     No. 09-10631
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TRACEY JOHNSON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CR-172-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        On 25 February 2009, Tracey Johnson was convicted of being a felon in
possession of a firearm and ammunition.                See 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Johnson appeals his conviction and sentence, claiming: the district
court erred in admitting evidence discovered during a search of Johnson’s
automobile that took place while he was handcuffed in the back of a police car;



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10631    Document: 00511046010 Page: 2           Date Filed: 03/09/2010
                                 No. 09-10631

his trial counsel was ineffective under the Sixth Amendment because counsel
failed to move to suppress this evidence; his conviction was not supported by
sufficient evidence; and, the district court erred in giving him a sentence
consecutive to an as-yet unimposed state sentence.
       Prior to the trial, and contrary to Federal Rule of Criminal Procedure
12(b)(3)(C), Johnson did not move to suppress the now-contested evidence.
Nevertheless, he maintains the search violated his Fourth Amendment rights,
relying on the Supreme Court’s recent decision in Arizona v. Gant, 129 S. Ct.
1710 (2009). As Johnson concedes, such issues not raised in a suppression
motion   are   waived    and   therefore     unreviewable.       United    States     v.
Chavez-Valencia, 116 F.3d 127, 131 (5th Cir. 1997). Furthermore, because the
record is undeveloped for his ineffective-assistance-of-counsel claim, we decline
to reach Johnson's contention that his counsel rendered ineffective assistance by
failing to move to suppress the evidence. Id. at 133-34.
      Consistent with his motions for judgment of acquittal in district court,
Johnson also contends the evidence of his guilt was legally insufficient. The
record must be examined “to determine whether a rational trier of fact, after
considering all the evidence and reasonable inferences drawn therefrom in a
light most favorable to the verdict, could have found the defendant guilty beyond
a reasonable doubt”. United States v. Rose, 587 F.3d 695, 702 (5th Cir. 2009)
(quotation marks omitted).
      Johnson claims the Government failed to prove beyond a reasonable doubt
that he possessed a firearm and ammunition. Possession is a necessary element
of § 922(g)(1). United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005). It
“may be actual or constructive, and may be proved by circumstantial evidence.
Constructive possession can be established by showing (1) ownership, dominion
or control over an item; or (2) dominion or control over the place where the item
is found”. United States v. Harris, 566 F.3d 422, 435 (5th Cir. 2009) (quotation
marks and citation omitted), petition for cert. filed (Aug. 20, 2009) (No. 09-7385).

                                         2
   Case: 09-10631   Document: 00511046010 Page: 3       Date Filed: 03/09/2010
                                No. 09-10631

      Johnson first contends that, under United States v. Mergerson, 4 F.3d 337,
349 (5th Cir. 1993), the Government failed to prove beyond a reasonable doubt
that he possessed the pistol at issue in count one of his indictment. That pistol
was found in Johnson’s bedroom in his grandmother’s residence.          Johnson
contends: the residence was jointly occupied by numerous persons; the weapon
was not in plain sight; and, there were no other circumstantial indicia that
Johnson knew about the weapon.
       Unlike in Mergeson, there is no evidence that the bedroom was jointly
occupied when the pistol was found, and an Officer testified the pistol was in
plain sight. There is also no evidence linking the pistol to another person.
Viewing the evidence in the light most favorable to the verdict, a reasonable
juror could have found Johnson had constructive possession of the pistol because
of his dominion and control over the bedroom where the pistol was found. See
Harris, 566 F.3d at 435.
      Johnson also contends the Government failed to prove beyond a reasonable
doubt his being a felon in possession of ammunition, a single Winchester
cartridge. In the above-described search, the cartridge was found in trousers
found in the rear of a vehicle over which Johnson had dominion and control. Id.
Johnson admitted that the trousers were his. Viewing the evidence in the light
most favorable to the verdict, a reasonable juror could have determined that
Johnson had constructive possession of the ammunition.
      Finally, Johnson maintains that the district court erred in requiring that
his federal sentence be served consecutively to an as-yet unimposed state
sentence. As Johnson concedes, our court has held otherwise. See United States
v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by
United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006)); see also United
States v. Rodriguez-Jaimes, 481 F.3d 283, 288 (5th Cir. 2007) (“Absent an en




                                       3
   Case: 09-10631    Document: 00511046010 Page: 4   Date Filed: 03/09/2010
                                 No. 09-10631

banc or intervening Supreme Court decision, one panel of this court may not
overrule a prior panel’s decision.”).
AFFIRMED.




                                        4
