United States Court of Appeals

Fifth Circuit



## FILED

October 21, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________ No. 02-41744

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAVID HINOJOSA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

--------------------

Before HIGGINBOTHAM, STEWART and PRADO, Circuit Judges.

PRADO, Circuit Judge.

Following a jury trial, Appellant David Hinojosa was convicted

on one count of being a felon in possession of 14 rounds of

ammunition, in violation of 18 U.S.C. §§ 922 (g)(1) and 924 (a)(2).

He raises three issues on appeal. In his first issue, he

challenges the denial of his motion to suppress, in which he argued

that the affidavit used to obtain a warrant to search his house did

not establish probable cause. In his second issue, he argues that

the government introduced insu fficient evidence to show that he

possessed the ammunition. In his third issue, Hinojosa argues that

the district court erred in determining that he qualified as an

“armed career criminal” under 18 U.S.C. §§ 924(e)(1).

Factual Background

In January 2002, federal agents obtained a warrant to search

a house that Hinojosa shared with Linda Sorsby. When conducting2

t he search of the house, officers found fourteen rounds of

ammunition in Hinojosa’s and Sorsby’s shared bedroom. Seven rounds

were in a night stand, and seven rounds were in a safe. Hinojosa,

who had three previous convictions, was charged with being a felon

in possession of ammunition. After Hinojosa unsuccessfully

challenged the warrant, the case proceeded to trial, after which a

jury convicted him. The district judge, applying the Armed Career

Criminal Act, sentenced Hinojosa to 235 month s in prison and

assessed a $15,000 fine.

Motion to Suppress

In t he district court, Hinojosa filed a motion to suppress,

arguing that the search warrant was invalid. In particular, he

pointed to some factual errors in the warrant affidavit, and he

also presented affidavits from two of the confidential informants

whose testimony had been used as support for the warrant. In these

new affidavits, the infor mants recanted their earlier testimony.

According to Hinojosa, the errors and th e new affidavits

established that the wa rrant was not supported by probable cause

and that the officer had not acted in good faith in obtaining the

warrant. The district court denied Hinojosa’s motion.

This Court uses a t wo-step process to review a district

court’s denial of a motion to suppress when that motion involves a

search warrant. United States v. Cavazos , 288 F.3d 706, 709 (5th

Cir. 2002). First, we determine whether the good faith exception

to the exclusionary rule applies. I d

. If this exception applies,

we end our analysis and affirm the district court’s ruling. Id

. If

the good faith exception does not apply, we proceed to the second3

step and examine whether the magistrate had a substantial basis for

finding probable cause. Id

. Thus, we only examine probable cause if

the good faith exception does not apply. U nited States v. Cherna

,

184 F.3d 403, 407 (5th Cir. 1999).

Under the good faith exception, evidence obtained as a result

of an officer’s objectively reasonable reliance on a warrant is not

suppressed, even if the warrant is later invalidated. Cherna , 184

F.3d at 407. Whether the officer’s reliance was reasonable is a

legal question that we review de novo. Cavazos ,288 F.3d at 709.

Additionally, th e good faith exception will not protect

evidence obtained by a warrant when the warrant affidavit contained

an intentional false statement or a statement that was made with

reckless disregard for its truth. Cavazos

, 288 F.3d at 709-10. The

defendant challenging the warrant bears the burden of establishing

these intentional or reckless false statements by a preponderance

of the evidence. Id

.

Although Hinojosa argues that the government agent’s actions,

when viewed in totality, establish a lack of good faith, his

arg uments are unpersuasive. At the hearing, Hinojosa failed to

est ablish that any false statements were intentionally or

recklessly made. Further, we conclude that reliance on the

challenged warrant was objectively reasonable. Thus, we do not

need to examine probable cause.

Acc ordingly, the good faith exception applies and the trial

court properly denied Hinojosa’s motion to suppress.

Sufficiency of the Evidence

Hinojosa also argues that the government introduced4

insufficient evidence to prove that he possessed the ammunition.

We review a challenge to the sufficiency of the evidence by

examining whether a “reasonable trier of fact could have found that

the evidence established guilt beyond a reasonable doubt.” United

States v. Smith

, 296 F.3d 344, 346 (5th Cir. 2002). In doing this,

we must look at the evidence in the light most favorable to the

verdict and make all reasonable inferences supporting the verdict.

United States v. Alarcon , 261 F.3d 416, 421 (5th Cir. 2001).

Under 18 U.S.C. § 922(g)(1), the government must prove that

the defendant was previously convicted of a felony, that he

knowingly possessed ammunition, and that this ammunition traveled

in or affected interstate commerce. U nited States v. De Leon

, 170

F.3d 494, 497 (5th Cir. 1991). Possession of the ammunition may be

actual or constructive. I d

. Both parties agree that the

government only attempted to prove constructive possession in this

case.

This Court has defined constructive possession as ownership,

dominion, or control over the contraband, or as dominion over the

premises in which the contraband is found. U nited States v.

Mergerson

, 4 F.3 d 337, 349 (5th Cir. 1993); D e Leon

, 170 F.3d at

497. Although a defendant’s exclusive possession of a house may

establish his dominion and control over contraband found there, his

joint occupancy of a house will not, by itself , support the same

conclusion. Mergerson , 4 F.3d at 349; see also United States v.

Fields

, 72 F.3d 1200, 1212 (5th Cir. 1996). Thus, in cases of

j oint occupancy, we will find constructive possession only when

there is “some evidence supporting at least a plausible inference5

that the defendant had knowledge of and access to” the illegal

item. Mergerson , 4 F.3d at 349.

At trial, the government presented evidence linking Hinojosa

to the ammunition by showing that items belonging to Hinojosa were

found in the same safe that contained seven rounds of the

ammunition. These items included a watch engraved with Hinojosa’s

initials, a knife with Hinojosa’s name engraved on it, and a credit

card with Hinojosa’s name and the name of his business printed on

it. Thus, although some evidence suggested that the ammunition

belonged to Linda Sorsby, who shared the bedroo m with Hinojosa,

other evidence connected Hinojosa with the ammunition. Therefore,

view ing the evidence in favor of the verdict, the evidence

presented at trial supports a plausible inference that Hinojosa had

knowledge of, and access to, the ammunition

.

Armed Career Criminal Status

Hinojosa also argues that the district court improperly

enhanced his sentence under USSG § 4B1.4(b)(3)(B), which implements

the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). We review

a district court’s application and interpretation of the Sentencing

Guidelines de novo and its findings of facts for clear error.

United States v. Yanez-Huerta , 207 F.3d 746, 747 (5th Cir. 2000).

ACCA imposes a mandatory minimum fifteen-year sentence on a

defendant who has been convicted under the felon-in-possession-ofa-firearm statute (§922(g)) and who has three previous convictions

for a violent felony or a serious drug offense. 18 U.S.C. §924(e).

The relevant definition of “serious drug offense” is:

an offense under State law, involving manufacturing,6

distributing, or possessing with intent to manufacture or

distribute, a controlled substance (as defined in section

102 of the Controlled Substances Act (21 U.S.C. §802)),

for which a maximum term of imprisonment of ten years or

more is prescribed by law.

18 U.S.C. §924(e)(2)(A)(ii)

In 1993, Hinojosa was convicted in state court for delivery of

.84 grams of cocaine. At that time, the maximum sentence under

Texas law for this crime was 99 years. Tex. Health & Safety Code §

481.106(a), repealed

, Acts 1993, 73d Leg. ch. 900, §2.07, eff.

Sept. 1, 1994. After Hinojosa’s conviction, the law was amended,

and it now provides a maximum sentence of two years imprisonment

for delivery of less than one gram of cocaine. Tex. Penal Code §

12.35. Hinojosa argues that his 1993 state conviction for delivery

of .84 grams of cocaine was not a “serious drug offense” because at

the time of his federal sentencing the maximum state sentence for

this offense was not at least 10 years, as requ ired by §924

(e)(2)(A)(ii).

Hinojosa relies on United States v. Morton , 17 F.3d 911 (6th

Cir. 1994) as support for this argument . In M orton

, as in this

case, the state revised its drug laws between the time of the

defendant’s state convictions and his federal sentencing. Under the

revised laws, Morton’s convictions would be punishable by a maximum

of six years imprisonment. Id . at 914. The court determined that

ACCA’s “prescribed by law” language was ambiguous because it did

not specify a time period. I d

. at 915. Based on this ambiguity

and the rule of lenity, the Morton court concluded that courts

should examine the maximum senten ce for a previous conviction at

the time of federal sentencing, not at the time of the conviction.7

Id

.

This case is distinguishable from Morton

, however. Texas’

revised sentencing scheme specifically provides that the revi sed

sentences do not apply to crimes committed before the effective

date of the revisions. Section 2.08-09 Act of May 29, 1993, 73d

Leg. ch. 900, §2.08,2.09, eff. Sept. 1, 1994, Tex. Gen. Laws 3714.

Anyone who, like Hinojosa, delivered less than one gram of cocaine

before the amendment would still receive the higher punishment.

Thus, even under Morton , Hinojosa’s previous convictions would be

for “serious drug offenses” because if he were sentenced by the

state court for those crimes today, he would still be subject to a

maximum term of at least ten years.

AFFIRMED.