UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 93-4226 & 93-4872

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIUS CASTLE PRUDHOME,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Texas

(January 17, 1994)

Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge:

In these appeals which we have consolidated upon motion of the

defendant, Julius Castle Prudhome appeals his conviction for

possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), his

sentence, and the court's severance of the ammunition count. For

the reasons assigned, we affirm the conviction and sentence and

dismiss the appeal of the severance order.

Background
2

A Beaumont, Texas police officer stopped the vehicle that

Prudhome was driving because it lacked a front license plate.

Prudhome had no driver's license or other form of identification.

He claimed to be James Pitre but one of his passengers told the

officer that he was James Henderson. Unable to determine

Prudhome's real identity, the officer placed him under arrest for

failure to possess a driver's license and proof of financial

responsibility. A search of Prudhome's person revealed a waist

pouch containing three live .25 caliber bullets, two objects that

the officer believed to be rock cocaine, and a razor blade. The

officer then asked the front-seat passenger, Patricia Corbin, to

exit the car. She complied but kept her hand in the pocket of her

dress. Fearing a weapon, the officer told Corbin to take her hand

out of her pocket. When she did more objects resembling rock

cocaine fell to the ground. The officer searched the passenger

compartment of the car and found a .25 caliber automatic pistol

underneath the driver's seat.

The cocaine-like objects did not contain cocaine but Prudhome

was found to have prior felony convictions. He was indicted for

possession of a firearm and ammunition in violation of 18 U.S.C.

§ 922(g)(1). A jury found him guilty of both counts and the trial

court, determining that his prior convictions included three

violent felonies or serious drug offenses, sentenced him to 288

months imprisonment under the enhancement provisions of 18 U.S.C.

§ 924(e) and U.S.S.G. § 4B1.4. Mindful of double jeopardy
 

1See United States v. Berry, 977 F.2d 915 (5th Cir. 1992).

 

2See United States v. Shaw, 920 F.2d 1225 (5th Cir.), cert.

denied. 111 S.Ct. 2038 (1991).

 

3Tex.Civ.Stat. article 6675a-3e, section 5(a).

 

4Tex.Civ.Stat. article 6687b, section 13.

 

5Snyder v. State, 629 S.W.2d 930 (Tex.Cr.App. 1982).

3

limitations,1 the district court entered sentence on the firearm

count only. Prudhome timely appealed and the court granted the

government's motion to sever the ammunition count. Prudhome

appealed that ruling. The two appeals are consolidated for

resolution.

Analysis

Prudhome first claims error in the denial of his third motion

for a continuance which he contends he needed to secure Corbin's

attendance at trial. He made no showing, however, of the testimony

that Corbin was expected to give or of her availability and

willingness to testify. The district court did not abuse its

discretion in denying that continuance.2

Next Prudhome maintains that his motion to suppress the

evidence seized upon his arrest should have been granted. We

disagree. The initial stop for failure to display a front license

plate was proper under Texas law.3 Even if Prudhome presented the

front plate to the officer, as he asserts, he violated the law by

not possessing a valid driver's license while operating a motor

vehicle4 and was subject to arrest.5 The contemporaneous search of
 

6New York v. Belton, 453 U.S. 454 (1981).

 

7See United States v. Perez, 897 F.2d 751 (5th Cir.)

(constructive possession may be inferred from dominion over the

vehicle in which the contraband item is located), cert. denied, 498

U.S. 865 (1990); cf. United States v. Mora, 994 F.2d 1129 (5th

Cir.), cert. denied, 114 S.Ct. 417 (1993).

4

his person and the passenger compartment of the vehicle from which

he emerged was a valid incident of the arrest.6

Prudhome challenges the sufficiency of the evidence that he

possessed the firearm. Disclaiming knowledge of the gun's

presence, he contends that the car belonged to Corbin who had asked

him to drive only minutes before the stop. A reasonable jury was

entitled to discredit defense testimony and infer knowing

possession from the facts that Prudhome was driving, the gun was

located directly under his seat, and he had three rounds of

matching ammunition in his waist pouch.7 We conclude that the

record contains relevant evidence sufficient to support the

verdict.

Concomitantly Prudhome objects to the district court's refusal

to give his proffered instruction that mere presence is

insufficient to support a conviction. The court a quo` instructed

the jury as follows:

"Possession," as that term is used in this case, may

be of two kinds: actual possession and constructive

possession. A person who knowingly has direct physical

control over a thing, at a given time, is then in actual

possession of it.

A person who, although not in actual possession,

knowingly has both the power and the intention, at a

given time, to exercise dominion or control over a thing,

either directly or through another person or persons, is

then in constructive possession of it.
 

8United States v. McKnight, 953 F.2d 898 (5th Cir.), cert.

denied, 112 S.Ct. 2975 (1992).

5

Possession may be sole or joint. If one person

alone has actual or constructive possession of a thing,

possession is sole. If two or more persons share actual

or constructive possession of a thing, possession is

joint.

You may find that the element of possession, as that

term is used in these instructions, is present if you

find beyond a reasonable doubt that the defendant had

actual or constructive possession, either alone or

jointly with others.

We previously have held that an instruction requiring a finding of

intent to exercise dominion or control over the contraband, as

here, obviates the need for a separate mere presence instruction.8

Prudhome's argument is foreclosed by circuit precedent.

Prudhome next challenges his 288-month sentence, contending

that the district court should have granted his request for a

downward departure. We review the district court's refusal to

depart from the Sentencing Guidelines only for an error of law. We

find none herein; nor do we find a constitutional defect, as urged

by Prudhome, in the application of the guidelines.

The severity of Prudhome's sentence was directly related to

the gravity of his criminal history. The court's finding that

Prudhome had three prior convictions of violent felonies or serious

drug offenses subjected him to a 15-year mandatory minimum sentence

under 18 U.S.C. § 924(e) and placed him at offense level 33 under

U.S.S.G. § 4B1.4. His priors, which included convictions for

felony theft, rape, aggravated robbery, and distribution of a

controlled substance, resulted in a criminal history score of 26,
 

9Rummel v. Estelle, 445 U.S. 263 (1980).

 

10United States v. Hayden, 898 F.2d 966 (5th Cir. 1990).

 

11See United States v. Sullivan, 895 F.2d 1030 (5th Cir.),

cert. denied, 498 U.S. 877 (1990).

 

12See supra, note 1.

6

well above the 13 points needed to put him in Criminal History VI,

the highest guidelines category. The indicated sentencing range

was 235 to 293 months. In selecting a 288-month sentence the

district judge observed: "I think you have forfeited your right to

live in a free society. You will not conform to the rules. You do

not think the rules comport with you."

Sentence enhancement for recidivism is an effort by the

legislative branch to deal with those who, by repeated criminal

acts, demonstrate an unwillingness or inability to conform to the

norms of society.9 So considered, sentence enhancement passes due

process and equal protection scrutiny.10 Prudhome nonetheless

claims that his sentence was disproportionately severe. He

misperceives the law. His sentence is within the guideline range,

a persuasive indication that it is not grossly disproportionate

considering the offense and the offender.11

Prudhome's final challenge concerns the severance of the

ammunition count. He insists that the count should have been

dismissed under our decision in United States v. Berry.

12 In Berry,

we held that the double jeopardy clause bars conviction of and

sentencing for the simultaneous possession of a firearm and

ammunition as two distinct violations of 18 U.S.C. § 922(g)(1).
 

13We address sua sponte jurisdictional considerations. The

district court retained jurisdiction to enter the severance order

because the ammunition count was not involved in the pending appeal

of the firearm count. Cf. United States v. Green, 882 F.2d 999

(5th Cir. 1989) (district court loses jurisdiction over matters

involved in the appeal). We have jurisdiction to hear Prudhome's

appeal of the severance order, even though it is interlocutory,

because the order implicates his rights under the double jeopardy

clause. United States v. Woods, 949 F.2d 175 (5th Cir. 1991),

cert. denied, 112 S.Ct. 1562 (1992).

7

The government agrees that it must dismiss the ammunition count but

only when and if the conviction and sentence on the firearm count

are affirmed. Consequently, it moved the district court to sever

the ammunition count so that it might be held in abeyance pending

the appeal of the firearm count. As noted, the district court

granted the motion after Prudhome appealed his conviction and

sentence on the firearm count.13

We agree with the government that the count which the

government elects to dismiss may be held in abeyance pending

exhaustion of direct review of the count on which the court

sentenced.

The conviction for unlawful possession of a firearm and the

attendant sentence are AFFIRMED. The appeal of the severance order

is DISMISSED as moot.