     Case: 18-11173       Document: 00515058616         Page: 1     Date Filed: 08/01/2019




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

                                                                                   FILED
                                     No. 18-11173                             August 1, 2019
                                   Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

LAMONNE OSHE IVORY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-15-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Lamonne Oshe Ivory challenges his jury-trial conviction and sentence of,
inter alia, 131-months’ imprisonment for: being a felon in possession of a
firearm (count one), in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);
conspiracy to possess a controlled substance, with intent to distribute (count
two), in violation of 21 U.S.C. § 846; two counts of possession of a controlled
substance, with intent to distribute (counts three and four), in violation of 21


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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U.S.C. § 841(a)(1), (b)(1)(C); and possession of a firearm in relation to a drug-
trafficking crime (count five), in violation of § 924(c)(1)(A). He contends: the
evidence was insufficient to convict him of counts one and five (related to
firearm-possession); the Confrontation Clause should have barred the
admission of Ivory’s incoming text messages; the district court abused its
discretion by failing to include Ivory’s requested language in the response to
the jury’s questions; and the court abused its discretion by considering past
unadjudicated offenses in sentencing and by sentencing Ivory to a higher
sentence than his co-conspirator.
      In claiming the evidence was insufficient to convict him of counts one
and five, Ivory timely made, and renewed, a motion for judgment of acquittal
at trial. See Fed. R. Crim. P. 29(a). Therefore, his claims challenging the
sufficiency of the evidence are reviewed de novo. Viewing the evidence in the
requisite light most favorable to the Government, our court considers whether
“any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt”. United States v. Chon, 713 F.3d 812, 818 (5th Cir.
2013) (emphasis in original) (internal quotation marks and citations omitted).
      With respect to both convictions, which relate to firearm-possession,
Ivory challenges the sufficiency of the evidence of possession. Possession of a
firearm may be actual or constructive, and it may be proved by circumstantial
evidence.   United States v. De Leon, 170 F.3d 494, 496 (5th Cir. 1999).
“Constructive possession” may be found if the defendant had either
“ownership, dominion or control over [the] illegal item itself”, or “dominion or
control over the premises in which the item is found”. See id. (citation omitted);
see also United States v. Hinojosa, 349 F.3d 200, 203 (5th Cir. 2003). In cases
of joint occupancy, as in this instance, our court “will find constructive
possession only when there is ‘some evidence supporting at least a plausible



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inference that the defendant had knowledge of and access to’ the illegal item”.
Hinojosa, 349 F.3d at 204 (quoting United States v. Mergerson, 4 F.3d 337, 349
(5th Cir. 1993)).
      The evidence showed Ivory resided in the place in which the firearm was
discovered. See United States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005).
Additionally, the evidence demonstrated the firearms were in plain view, and
Ivory admitted knowledge of at least one firearm’s presence. See United States
v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996). Therefore, the evidence supports
a plausible inference that Ivory knew of, and had access to, the firearms. See
Hinojosa, 349 F.3d at 203–04.
      For Ivory’s challenge to the sufficiency of the evidence regarding whether
he possessed a firearm in furtherance of the drug-trafficking offenses, relevant
factors in determining if the possession was “in furtherance” of such an offense
include: the type of drug activity; the type of firearm; the accessibility of the
firearm; the proximity of the firearm to drugs or drug profits; whether the
firearm was loaded; whether the firearm was stolen; the legality vel non of the
possession of the firearm; and the time and circumstances under which the
firearm was found. United States v. Suarez, 879 F.3d 626, 632 (5th Cir. 2018).
      Police officers found the firearms in close proximity to heroin, cocaine,
and marijuana, along with cash and a digital scale. See United States v.
Walker, 828 F.3d 352, 355–56 (5th Cir. 2016); United States v. Ceballos-Torres,
218 F.3d 409, 415 (5th Cir. 2000). Both firearms at issue were handguns,
which are commonly used in drug trafficking. See United States v. Zamora,
661 F.3d 200, 211 (5th Cir. 2011). One was loaded, and officers also found
ammunition in the vicinity. Because Ivory was a felon, he possessed the
firearms illegally. Moreover, one firearm was reported stolen. The firearms
were discovered while officers executed a search warrant on a residence used



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to distribute narcotics. Therefore, the evidence was sufficient to show Ivory
possessed firearms in furtherance of a drug-trafficking offense. See Chon, 713
F.3d at 818.
      As raised at trial, Ivory contends the admission of his incoming text
messages violated the Confrontation Clause. He concedes, however, that the
text messages were not testimonial, see Crawford v. Washington, 541 U.S. 36,
51 (2004), but raises the issue to preserve it for possible future review. There
is no indication the messages were primarily intended to be used in a criminal
prosecution; rather, they facilitated the sale and purchase of drugs. Cf. United
States v. Towns, 718 F.3d 404, 410–11 (5th Cir. 2013). Accordingly, pursuant
to our de novo review, United States v. Polidore, 690 F.3d 705, 710 (5th Cir.
2012), the court did not err by overruling Ivory’s Confrontation Clause
objections.
      For the final issue concerning his convictions, Ivory contends the court
should have responded to the jury’s question regarding the definition of
possession by instructing the jury that the mere presence of a firearm and
defendant’s knowledge of its presence were insufficient to show possession.
Our court reviews for abuse of discretion challenges to a district court’s
responses to jury notes. See United States v. Daniels, 281 F.3d 168, 183 (5th
Cir. 2002). A district court generally does not err by giving an instruction that
tracks this circuit’s pattern jury instructions, and is a correct statement of the
law. United States v. Richardson, 676 F.3d 491, 507 (5th Cir. 2012).
      The jury asked whether knowledge of the presence of the firearms
constituted possession. In response, the district court provided the fifth circuit
pattern jury instruction’s definitions of actual and constructive possession, as
well as sole and joint possession. See Pattern Crim. Jury Instr. 5th Cir. 1.31
(2015). This was a correct statement of the law, and it informed the jury of the



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elements needed to prove constructive possession. See De Leon, 170 F.3d at
496.     Therefore, Ivory has not shown the court abused its discretion in
instructing the jury on the law of constructive possession. See Richardson, 676
F.3d at 507; Daniels, 281 F.3d at 183.
        Regarding sentencing, Ivory contends the court relied on “erroneous
information or assumptions” by considering the presentence investigation
report’s (PSR) description of uncharged criminal conduct, which did not receive
criminal-history points. Although post-Booker, the Sentencing Guidelines are
advisory only, the district court must avoid significant procedural error, such
as improperly calculating the Guidelines sentencing range. Gall v. United
States, 552 U.S. 38, 48–51 (2007). If no such procedural error exists, a properly
preserved objection to an ultimate sentence is reviewed for substantive
reasonableness under an abuse-of-discretion standard. Id. at 51; United States
v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for
issues preserved in district court, its application of the Guidelines is reviewed
de novo; its factual findings, only for clear error.         E.g., United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
        To the extent Ivory challenges the procedural reasonableness of his
sentence, our review is only for plain error because he did not object on this
basis in district court. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). Under that standard, Ivory must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct the
reversible plain error, but should do so only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings”. Id.
        “It is well-established that prior criminal conduct not resulting in a
conviction may be considered by the sentencing judge.” United States v. Lopez-



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Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). A district court “may adopt the
facts contained in a PSR “further inquiry if those facts have an adequate
evidentiary basis with sufficient indicia of reliability and the defendant does
not present rebuttal evidence or otherwise demonstrate that the information
in the PSR is unreliable”. United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012) (alteration, internal quotation marks, and citation omitted). And, it
“may properly find sufficient reliability on a [PSR] which is based on the
results of a police investigation”. United States v. Fuentes, 775 F.3d 213, 220
(5th Cir. 2014) (internal quotation marks and citations omitted). On the other
hand, a district court is not permitted to rely on a bare arrest record that refers
only to the fact of an arrest and does not include information concerning the
facts and circumstances of the conduct resulting in defendant’s arrest. United
States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013).
      The PSR did not rely on a bare arrest record. Ivory did not object to the
inclusion of the other criminal offenses, and did not rebut the information in
the PSR by showing it was unreliable.            See Harris, 702 F.3d at 230.
Accordingly, the court did not err by adopting the PSR without further inquiry,
and by considering the offenses described in the PSR when deciding Ivory’s
sentence. See id.
      To the extent he contends his sentence is substantively unreasonable,
our review is for abuse of discretion because Ivory properly objected in district
court. See Gall, 552 U.S. at 51. Ivory claims the court abused its discretion by
imposing a sentence unreasonably disparate from that of his co-conspirator.
As noted, the reasonableness of a sentence is reviewed for abuse of discretion.
See Gall, 552 U.S. at 46.
      In reviewing a substantive-reasonableness challenge, our court “applies
a rebuttable presumption of reasonableness to a properly calculated, within-



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[G]uidelines sentence, such as” Ivory’s. United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009). “The presumption is rebutted only upon a showing that
the sentence does not account for a factor that should receive significant
weight, it gives significant weight to an irrelevant or improper factor, or it
represents a clear error of judgment in balancing sentencing factors.” Id.; see
18 U.S.C. § 3553(a). Section 3553(a)(6) instructs the district court to consider
“the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct”.
      Ivory has not demonstrated he and his co-conspirator were similarly
situated. See Cisneros-Gutierrez, 517 F.3d at 767. Therefore, the court did not
abuse its discretion by failing to consider disparities in the sentences of
similarly-situated offenders. See Gall, 552 U.S. at 46.
      AFFIRMED.




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