* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40215

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOMMY JAMES LEE HORNE,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:03-CR-81-ALL

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

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Tommy James Lee Horne appeals his conviction and sentence

for being a felon in possession of a firearm and for possession

of an unregistered firearm. See 18 U.S.C. § 922(g); 26 U.S.C.

§ 5861(d). Horne argues that the evidence at trial was

insufficient to support his convictions because there was no

proof that he knowingly possessed the weapon. 

The evidence showed that Horne was the sole occupant of the

vehicle he was driving and that the weapon was wedged between the
No. 04-40215

-2-

back seat cushions directly behind him. The weapon was visible

and accessible to him from the driver’s seat. Horne therefore

had constructive possession of the weapon. See United States v.

Dancy, 861 F.2d 77, 81 (5th Cir. 1988). Thus, the evidence

established Horne’s guilt beyond a reasonable doubt. See United

States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir. 1995).

Horne challenges the district court’s use of his prior

convictions for burglary of a building and delivery of a

controlled substance to enhance his sentence pursuant to

18 U.S.C. § 924(e). The evidence presented at Horne’s sentencing

hearing included certified copies of the indictment as well as

the judgment of conviction on the burglary charge. The elements

of a “generic” burglary were sufficiently spelled out in those

documents. See Taylor v. United States, 495 U.S. 575 (1990). 

Horne’s suggestion that there was insufficient proof of his prior

burglary conviction and that the court relied solely on the

presentence report’s (PSR’s) assertion of the conviction is

frivolous. 

Horne’s argument that his narcotics conviction is no longer

“viable” is equally frivolous. His citation to 18 U.S.C. § 921

is inapposite. That statute deals with vacated or expunged

convictions. Horne admits, and the evidence at sentencing

showed, that it was his sentence and not his conviction for

delivery of a controlled substance that was vacated.
No. 04-40215

-3-

Horne argues that he was denied due process because he was

not given sufficient notice of the Government’s intent to rely on

his prior convictions to enhance his sentence. Horne received

notice through the PSR, and he challenged the armed career

criminal enhancement through written objections and at the

sentencing hearing. The notice was therefore sufficient. 

See e.g., United States v. O’Neal, 180 F.3d 115, 125 (4th Cir.

1999).

Horne argues that the indictment and jury charge were

insufficient because they failed to contain any information

regarding his prior convictions. This argument is foreclosed by

Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.

Stone, 306 F.3d 241 (5th Cir. 2002).

AFFIRMED.