* P ursuant to Local Rule 47.5, the court has determined th at this opinion shoul d not be

published and is not precedent except under the limit ed circumstances set forth in Local Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40771

Summary Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee

versus

MARK WAYNE REED

Defendant - Appellant

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

Appeal from the United States District Court

for the Eastern District of Texas

(4:95-CR-17)

------------------------------- July 1, 1996

Before: Smith, Benavides, and Dennis, Circuit Judges.

PER CURIAM: *

Mark Wayne Reed was convicted following a jury trial of possession of a firearm by a felon

(count one), possession of a controlled substance with intent to distribute (count two), and use or

carrying a firearm during and in relation to a drug-trafficking crime (count three). He was sentenced

to a total term of imprisonment of 295 months, a five-year period of supervised release, and a $150

specia l assessment. The defendant appeals his conviction based on an alleged Fourth Amendment

violation and insufficiency of the evidence for counts one and three. We reverse the conviction forcount three, and affirm the convictions for counts one and two.

Reed first argues that the district court erred in denying his motion to suppress evidence based

on the failure of the officers who entered his home to kno ck and identify themselves. At an

evidentiary hearing on the motion to suppress, Officer Flowers testified that after midnight on April

10, 1995, he arrived with nine or ten other Texas-state police officers at Reed’s mo bile home

re sidence. Flowers had obtained a search warrant, classified as a “hazardous warrant.” At the

residence they found a gas station cord which they suspected was designed to alert the inhabitants

of the residence if someone drove over it. The officers broke open the front door and then yelled that

it was the police with a search warrant.

The officers discovered Reed and another man asleep. Five guns were located under that

mattress, and a semi-automatic weapon was found in a drawer underneath the headboard on Reed’s

side of the bed. In another room, a locked gun cabinet contained met hamphet amine, a sawed-off

shotgun, and six other guns.

Flowers testified that he did not knock before entering based on his prior knowledge of Reed,

who had previously attempted to escape from police officers through a trap door in the floor of his

mo bile home. Flowers testified that based o n his experience, when a person is in possession of

narcotics and the police arrive, the person will attempt to dispose of the narcotics.

Reed argues that the district court erred in denying his motion to suppress. He maintains that

the search of his residence violated the Fourth Amendment because the officers failed to knock and

identify themselves prior to forcibly entering his ho me. We review the district court’s findings

following a suppression hearing for clear error. United States v. Inocencio

, 40 F.3d 716, 721 (5th Cir.

1994).

In Wilson v. Arkansas

, 115 S.Ct. 1914, 1915 ( 1995), the Supreme Court examined thecommon law of search and seizure, holding that the “common law ‘knock and announce’ principle

forms a part of the reasonableness inquiry under the Fourth Amendment.” The Court noted that “in

some circumstances an officer’s unannounced en t ry int o a home might be unreasonable under the

Fourth Amendment,” and left it to the lower courts to determine those circumstances. Id

. at 1918.

The defendant bears the init ial burden o f establishing that an unannounced entry occurred.

United States v. Fike

, __F.3d__ (5th Cir. May 7, 1996, No. 93-1797), 1996 WL 229346 at *6. If

the defendant makes this showing, the burden shifts to the government to justify the search. I d. The

“knock and announce” rule serves several fundamental interests, including “‘(1) protecting law

e nforcement officers and household occupants from potential violence; (2) preventing the un necessary

destruction of private property ; and (3) protecting people from unnecessary i ntrusion into thei r

private activities. Id. (quoting United States v. Sagaribay

, 982 F.2d. 906, 909 (5th Cir.), cert. denied

,

114 S.Ct. 160 (1993)).

The district cou r t found that the officers’ conduct was reasonable because an alarm would

sound if someone approached Reed’s residence, a basis existed for believing that the officers might

be endangered if they knocked, and a basis existed for believing tha t evidence would, in fact, be

dest royed. The district court’s factual findings were not clearly erroneous. Reed previously had

attempted to escape from his mo bile home while being pursued by the police. Reed’s prior criminal

history included possession of a prohibited weapon. The officers unannounced entry intro Reed’s

home was not unreasonable under the Fourth Amendment.

Reed appeals the district court’s denial of his motion for a judgment of acquittal as to count

one, possession of a firearm by a felon. The appellant failed to renew his motion for a judgment of

acquittal at the close of all of the evidence, so his argument that there was insufficient evidence to

support the conviction is reviewable only to determine whether there was a manifest miscarriage ofjustice. United States v. Laury , 49 F.3d 145, 151 (5th Cir.), cert. denied , 116 S.Ct. 162 (1995).

Section 922(g)(1) requires proof that t he defendant had a prior felony conviction, that the

defendant possessed the firearm, and that the firearm traveled in interstate commerce. United States

v. Wright

, 24 F.3d 732 , 734 (5th Cir. 1994). The possession of a firearm may be actual or

constructive, defined as knowing ownership, control, or dominion over the item itself or over the

premises where the item is located. Id. Reed admitted to the presence of “several firearms” in the

residence in his written statement. The night of his arrest, he prod uced the key to the gun cabi net

which contained a Cobray .45 hand gun, among other weapons. Reed admits to two prior felony

convictions. An ATF agent testified at trial that the gun was manufactured in Tennessee, indicating

t hat it traveled in interstate commerce. The jury heard sufficient evidence to convict Reed for

possession of a firearm by a felon.

Reed also appeals his conviction on count three, the us e o r carrying of a firearm during a

drug-trafficking crime. The government concedes that it failed to establish “use” of the firearm during

a drug-trafficking offense. In B ailey v. United States

, 116 S.Ct. 501, 505 (1995), the Supreme Court

defined “use” under the statute as “an active employment of the firearm by the defendant, a use that

makes the firearm an operative factor in relation to the predicate offense.” Because the record is

devoid of evidence of an active employment or carrying of a firearm, we reverse the appellant’s

conviction on count three as a manifest miscarriage of justice.

The reversal of Reed’s sentence for count three will not affect his sentences for counts one

and two, so we need not remand the case for resentencing. Reed’s sentence consisted of 120-month

term of imprisonment on count one to be served concurrently with a 235-month term of imprisonment

on count two. The 60-month term for count three was to be served consecutively with t he other

sentences. S ee 18 U.S.C. § 924(c)(1) (requiring that term of imprisonment imposed for violation of§ 924(c)(1) shall not run concurrently with any other term of imprisonment.)

Reed was sentenced as a armed career criminal under the provisions of 18 U.S.C. § 924(e)

and pursuant to U.S.S.G. § 4B1(b)(B), which provides for a mandatory minimum total offense level

of 33. Since Reed’s offense level on counts one and two did not exceed t his minimum, he was

sentenced using an offense level of 33. The reversal of count three could result upon a remand in a

two level increase in the offense level for counts one and two, however, the total offense level would

still not top the minimum of 33 under the armed career criminal provision. Thus the reversal can have

no effect on the sentencing for counts one and two making a remand for resentencing unnecessary.

Therefore, we AFFIRM the convic t ions and sentences for counts one and two, and

REVERSE the conviction and sentence for count three.