* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60849

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

TOAN M BUI

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:06-CR-56-1

Before STEWART, OWEN and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Toan M. Bui appeals the revocation of his supervised release following his

guilty plea to one count of making false statements in connection with his

application for disaster unemployment benefits with the Mississippi Department

of Employment Security. He contends that the district court abused its

discretion in revoking his supervised release because the evidence was

insufficient to prove that he possessed the firearm, ammunition, drug

paraphernalia, and marijuana.

United States Court of Appeals

Fifth Circuit

F I L E D

June 12, 2008

Charles R. Fulbruge III

Clerk
No. 07-60849

2

A district court may revoke a term of supervised release upon a finding,

by a preponderance of the evidence, that the defendant violated a condition of

supervised release. 18 U.S.C. § 3583(e)(3); United States v. Hinson, 429 F.3d

114, 118-19 (5th Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006). We review a

district court’s decision to revoke a defendant’s supervised release for abuse of

discretion. United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995).

“Possession may be actual or constructive.” United States v. Mergerson,

4 F.3d 337, 348 (5th Cir. 1993). This court has “adopted a commonsense, factspecific approach to determining whether constructive possession was

established” and has found constructive possession in joint-occupancy cases only

when some evidence permits “a plausible inference that the defendant had

knowledge of and access to the weapon or contraband.” Id. at 349.

There was sufficient evidence presented by the Government for the district

court to find that Bui possessed the firearm, ammunition, drug paraphernalia,

and marijuana. The evidence showed that Bui knew of and had access to the

firearm, which was located in an unlocked, plastic, transparent drawer in an

unlocked closet shared by Bui and Huynh. The evidence showed that the

ammunition and drug paraphernalia were found in plain view in the unlocked

closet shared by Bui and Huynh. Thus, Bui could see them and had immediate

access to them. See United States v. McKnight, 953 F.2d 898, 902 (5th Cir.

1992). There was conflicting evidence presented as to whether the marijuana

belonged to Bui or Huynh. The district court made a credibility determination

and found that the marijuana belonged to Bui. This court affords great

deference to a district court’s credibility findings and does not pass on a district

court’s determination as to the credibility of witnesses. United States v.

Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994). Therefore, because the evidence

permits a plausible inference that Bui had knowledge of and access to the

firearm, ammunition, drug paraphernalia, and marijuana, the district court did

not abuse its discretion in finding that the Government showed by a
No. 07-60849

3

preponderance of the evidence that Bui had possession of these items and thus

violated the terms of his supervised release. Mergerson, 4 F.3d at 349; see also

McKnight, 953 F.2d at 902.

Accordingly, the district court’s judgment is AFFIRMED.