UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-20853

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GILBERT CABALLERO YBARRA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

November 22, 1995

Before KING, DeMOSS and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

This is an appeal from a conviction for felon in possession of a weapon, 18 U.S.C. § 922(g).

Defendant Gilbert Caballero Ybarra (“Ybarra”) claims (1) that the evidence was ins ufficient to

convict him and (2) that the district court erred in including two previous convictions in his criminal

history for sentencing purposes. Finding that the evidence was sufficient to convict Ybarra and that

the two convictions were properly included in his criminal history, we AFFIRM the judgment of the

district court.

BACKGROUND2

On July 28, 1992, an undercover Houston police officer went to 6504 Longview in Houston

to buy heroin. Herlinda Ybarra (“Herlinda”), Ybarra’s wife, answered the door. Ybarra, who was

in the living room o f the house, directed Herlinda to sell heroin to the officer. Later that evening,

police executed a search warrant at the address. Ybarra was not home, but his wife and children

were. During the search, police found two loaded guns between the mattress and the box springs of

the bed.

One of the bedrooms in the house was occupied by an adult man and woman. In that room,

the police found both men’s and women’s clothing, including a work shirt hanging in the closet with

the name “Ybarra” on it. In the bedroom there were photographs of Ybarra and Herlinda. A cable

company employee ID in the name “Gilbert Ybarra” was also found in the bedroom.

In the bedroom and the kitchen the police found several pieces of mail addressed to Ybarra

at 6504 Longview. Among the mail were two bills postmarked in January 1992 and an envelope

postmarked April 1992.

Ybarra had been seen previously by the police at 6504 Longview. The night before the

search, an officer saw Ybarra coming out of the house and driving away in a brown truck which they

had seen previously parked at the home. During the search, the same brown t ruck was parked in

front of the house. One of the officers “ran the license plate on the truck; and it came back with two

traffic warrants in Gilbert Ybarra’s name.”

During the search, an officer asked Herlinda where Ybarra was. She said that he had gone

to the store and that, as long as the police were parked in front of the house, “there’s no way he’s

coming home.”

On July 19, 1993, almost a year after the search, a Houston police officer and an agent of the

Bureau of Alcohol, Tobacco and Firearms (“ATF”) went to 6504 Longview to interview Ybarra.

Ybarra was there and spoke with the officers. The officers testified that Ybarra admitted that he

owned the firearms found during the search, that he was a convicted felon, and that he knew he could

not legally possess weapons. At trial Ybarra denied that he had admitted to owning the guns.3

At trial, Ybarra’s sister and brother-in-law testified that Ybarra was living with them during

July 1992. Another witness testified that Ybarra was not living at 6504 Longview during the summer

of 1992.

Ybarra was indicted by a federal grand jury and charged with one count of felon in possession

of a firearm, 18 U.S.C. § 922(g)(1). The government filed no tice of its intent to seek a sentence

enhancement under 18 U.S.C. § 924(e). Ybarra waived a jury trial and was tried by the court. He

was found guilty and sentenced to 235 months in prison.

STANDARDS OF REVIEW

In reviewing the sufficiency of the evidence in a bench trial, we must affirm the conviction if

there is substantial evidence. U nited States v. Jennings

, 726 F.2d 189, 190 (5th Cir. 1984). “[T]he

test for evidential sufficiency is whether any substantial evidence supports the finding of guilty and

whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond

a reasonable doubt that the defendant was guilty.” U nited States v. Davis

, 993 F.2d 62, 66 (5th Cir.

1993) (quoting United States v. Richardson , 848 F.2d 509, 511 (5th Cir. 1988)). As an appellate

court, it is not our task to weigh the evidence or determine the credibility of witnesses. J ennings

,

726 F.2d at 190. We must view all evidence in the light most favorable to the government and defer

to all reasonable inferences drawn by the trial court. D avis

, 993 F.2d at 66. Our review is the same

whether the evidence is direct or circumstantial. U nited States v. Cardenas

, 9 F.3d 1139, 1156 (5th

Cir. 1993), cert. denied , 114 S. Ct. 2150 (1994).

In reviewing sentencing guideline cases, we review the factual findings of the district court

for clear error. U

nited States v. Washington

, 44 F.3d 1271, 1280 (5th Cir.), cert. denied, 115 S. Ct.

2011 (1995)

. The district court’s application of the guidelines to the findings are reviewed d e novo

.

United States v. Gaitan , 954 F.2d 1005, 1008 (5th Cir. 1992).

DISCUSSION

Sufficiency of the Evidence4

In order to convict one for felon in possession of a firearm, the government must prove that

the defendant (1) has been convicted o f a felo ny; (2) possessed a firearm in or affecting interstate

commerce; and (3) knew that he was in possession of the firearm. U nited States v. Dancy

, 861 F.2d

77, 81 (5th Cir. 1988). At trial, Ybarra stipulated that he was a convicted felon and that the firearm

was in, or affected, interstate commerce. Therefore, the only element the government had to prove

was that Ybarra knowingly possessed a firearm.

Possession of the firearm may be actual or constructive. U nited States v. Mergerson

, 4 F.3d

337, 348-49 (5th Cir. 1993). Constructive possession is “ownership, dominion, or control over the

contraband itself, or

dominion or control over the premises in which the contraband is concealed.”

United States v. Smith

, 930 F.2d 1081, 1085 (5th Cir. 1991) (emphasis in original). “[M]ere control

or dominion over the place in which contraband or an illegal item is found by itself is not enough to

establish constructive possession when there is joint occupancy of a place.” Mergerson

, 4 F.3d at

349 (emphasis in original). “In our previous joint occupancy cases, t his co urt has adopted a

commonsense, fact-specific approach to deter mining whether constructive possession was

established. We have found constructive possession in such cases only when there was some

evidence supporting at least a plausible inference that the defendant had knowledge of and access to

the weapon or contraband.” Id . (quoting Smith , 930 F.2d at 1086; internal citations omitted).

Ybarra argues that the evidence is insufficient to prove that he possessed the firearm. He

argues that this case is similar to Mergerson

, where we found the evidence insufficient to prove the

defendant’s possession of a firearm. In M ergerson

, a handgun was found between the mattress and

box springs of a bed in the defendant’s home, which he shared with his girlfriend. There was a

pawnshop receipt showing that the gu n had been purchased by the girlfriend long before the

defendant moved in with her. We held that this was not enough evidence to convict the defendant

of possessing a firearm.

We believe that the instant case is clearly distinguishable from M e rgerson

. Here, we have

more than just evidence that Ybarra lived in a house where a gun was present. We also have Ybarra’s5

confession that he owned the gun and evidence that Ybarra was dealing he roin out of the house.

Ybarra correctly argues that “an accused may no t be convicted on his own uncorroborated

confession.” Smith v. United States , 348 U.S. 147, 152 (1954). This is especially true when “the

admission is made after the fact to an official charged with investigating the possibility of wrongdoing,

and the statement embrac es an element vital to the Government’s case.” I d

. at 155. Because

Ybarra’s statement to the officers that he owned the gun is central to an element of the government’s

case, possession of the firearm, we must satisfy ourselves that the confession is corroborated. “The

corroborative evidence alone need not prove the defendant’s guilt beyond a reasonable doubt, nor

even by a preponderance, as long as there is substantial indepen dent evidence that the offense has

been committed, and the evidence as a whole proves beyond a reasonable doubt that the defendant

is guilty.

. . . [E]xtrinsic proof [is] sufficient which merely fortifies the truth of the confession, without

independently establishing the crime charged.” U nited States v. Garth

, 773 F.2d 1469, 1479 (5th

Cir. 1985), cert. denied , 476 U.S. 1140 (1986) (internal quotations omitted).

After reviewing the record, we believe that there is sufficient evidence to corroborate Ybarra’s

confession. For example, the evidence showed that:

1. Ybarra was seen at the house at 6504 Longview before the July 28, 1992, search;

2. Ybarra’s truck was “periodically” parked at the house;

3. Men’s shoes and clothing, including several shirts with Ybarra’s name on them,

were found at the house during the search;

4. Photographs of Ybarra were found in the bedroom of the house during the search;

5. An employee ID card in Ybarra’s name was found in the bedroom during

the search;

6. Several pieces of mail addressed to Ybarra were found in the house during the search;

7. The day before the search, Ybarra was seen leaving the house in his truck;

8. The evening of the search, Ybarra was present at the house and authorized Herlinda’s

sale of heroin to the undercover officer.1 Ybarra argues that this statement is hearsay and should be inadmissible. However, the statement

is not offered for the truth of the matter asserted. The assertion Herlinda made was that Ybarra

would not come home as long as t he police were there. The statement was offered to prove that

Ybarra lived at the house. Whether Ybarra would come home and, if not, why not, was not at issue

in the trial. Therefore, the statement was not offered to prove the truth of the matter asserted and,

by definition, was not hearsay. F E D

. R. E VID

. 801 (Hearsay defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted”).

6 9. The police knew that Ybarra resided at 6504 Longview through “prior police work”;

10. Ybarra was at the house on several occasions after the search.

11. Herlinda stated to the police during the search that there was “no way [Ybarra was]

coming home” as long as the police were there. 1

Taken together, these facts provide sufficient evidence to corroborate Ybarra’s possession

of the firearm found at 6504 Longview. S ee Wong Sun v. United States

, 371 U.S. 471, 489 (1963);

Smith , 348 U.S. at 156; Garth , 773 U.S. at 1479.

The evidence was sufficient to prove that Ybarra lived at the house with his wife, Herlinda.

The evidence showed that Ybarra authorized the heroin sale. The combination of Ybarra’s residence

in the house, his narcotics trafficking there and his corroborated confession that he owned the firearm,

was sufficient to prove that he possessed the firearm. Therefore, his conviction fo r felo n in

possession of a firearm is affirmed.

Sentencing Issues

Ybarra argues that the district court erred in counting as part of his criminal history two

convictions for which he had been released from custody over 15 years prior to the commission of

the instant offense. We disagree.

On May 13, 1971, Ybarra was convicted of possession of heroin and marijuana and sentenced

to ten years in prison. On March 29, 1972, Ybarra was convicted of burglary and sentenced to ten

years in prison. On April 28, 1976, he was paroled on both convictions. On September 13, 1977,

Ybarra was again convicted for possession of heroin and sentenced to life in prison. On November

29, 1977, his paroles in the 1971 and 1972 convictions were revoked because of his conviction of the

1977 offense.2 Ybarra did not challenge below, and does not challenge here,, the finding that his parole was

revoked in 1977. He merely claims that, because he was already incarcerated, this revocation did not

"result" in his imprisonment.

3 Ybarra cites no cases in support of this interpretation of the guidelines.

7 The Sentencing Guidelines require that three criminal history points be added for each prior

sentence of imprisonment of more than 13 months. U.S.S.G. § 4A1.1(a). A prior sentence is not

counted if it was imposed more than 15 years prior to the defendant’s commis sio n of the instant

offense, unless that sentence resulted in the defendant being incarcerated during any part of the 15-

y ear period. U.S.S.G. § 4A1.2(e)(1).

The district court concluded that the 1977 parole revocation of the 1971 and 1972 offenses

resulted in Ybarra being imprisoned during the 15 years prior to the instant offense. 2 Accordingly,

the district court assessed three cr iminal hist o ry points for each of these prior convictions. This

moved Ybarra’s criminal history category to VI. Based on a total offense level of 33, his guideline

range became 235 to 293 months. He was sentenced to 235 months. If the two convictions were

not counted, his criminal history category would be IV and his guideline range would be 188 to 235

months.

Ybarra argues that the district cour t erred in counting the 1971 and 1972 convictions. He

contends that, because he was imprisoned for the 1977 offense by the time the paroles were revoked

for the 1971 and 197 2 o ffenses, he was not imprisoned as a “result” of the earlier convictions. 3

Therefore, the convictions are older than 15 years and should not be counted.

Ybarra is incorrect. When his parole was revoked he again began serving the ten-year

sentences he received in 1971 and 1972. He was serving t hree sentences: the 1971 sentence, the

1972 sentence and the 1977 sentence. S ee United States v. Cornog

, 945 F.2d 1504, 1510 (11th Cir.

1991); United States v. Paskow , 11 F.3d 873, 881 (9th Cir. 1993).

CONCLUSION8

The evidence was sufficient to convict Ybarra of being a felon in possession of a weapon.

The combination of his residence in the house where the gun was found, his drug dealing at the house

and his corroborated confession that he owned the gun clearly allowed a factfinder to find beyond a

reasonable doubt that he possessed the firearm. The district court did not err in counting Ybarra’s

two prior convictions as part of his criminal history. Accordingly, the judgment of the district court

is AFFIRMED.