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. 08-60554

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

GLEN B CLAY, also known as Glenn B Clay

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:07-CR-73-1

Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Glen B. Clay appeals his conviction and 235-month sentence for possession

of a firearm by a felon. We AFFIRM for the following reasons:

1. The district court did not err by assigning criminal history points for

several burglary convictions from 1983. Under U.S.S.G. § 4A1.2, any

portion of a sentence served within 15 years of the instant offense brings

the prior offense within the criminal history computation. The

presentence report summarized each of Clay's earlier convictions and

United States Court of Appeals

Fifth Circuit

F I L E D

June 4, 2009

Charles R. Fulbruge III

Clerk
No. 08-60554

2

sentences. It revealed that when Clay was paroled in 1990, approximately

thirteen years of his prior consecutive sentences had not been served. The

report also summarized his 1994 conviction of a new crime, which caused

the Mississippi state court to revoke his 1990 parole. By statute, the

revocation would have required Clay to serve the "remainder of the

sentence originally imposed . . . ." Miss. Code Ann. § 47-7-27. According

to the report relied upon by the district judge, the sentences from his 1983

convictions were to be served concurrently with the 1994 sentence. The

district judge found that Clay served a portion of the 1983 sentences

within 15 years of the instant offense. Because the finding is plausible in

light of the record as a whole, there is no clear error. See United States v.

Martinez-Moncivais, 14 F.3d 1030, 1038 (5th Cir. 1994).

2. Clay’s guidelines minimum sentence is not substantively unreasonable.

Clay argues that the nature of the offense and his distant criminal record

do not justify the sentence. But the district court considered these same

arguments and, after considering the factors under 18 U.S.C. § 3553(a),

rejected Clay’s request for a downward variance because of “the magnitude

of [his] criminal history.” We see no reason to disturb the presumptively

reasonable sentence. See United States v. Rodriguez, 523 F.3d 519, 526

(5th Cir. 2008).

3. We see no reversible error in the admission of the ATF agent’s

testimony. Given the agent’s significant qualifications, including his

education and law enforcement training and experience, the agent likely

would have been qualified to testify as an expert. See United States v.

Ollison, 555 F.3d 152, 163 (5th Cir. 2009). Moreover, we agree with the

Government that the testimony responded to Clay’s cross-examination of

the police officers on the issue of fingerprint evidence, see United States v.

Darland, 659 F.2d 70, 72 (5th Cir. 1982), and was cumulative to Clay’s
No. 08-60554

3

own expert witness, who also testified that fingerprints are not easily

recovered from firearms. Even assuming error in the admission of the

testimony, it was harmless. See United States v. Hall, 500 F.3d 439, 444

(5th Cir. 2007) (“The erroneous introduction of cumulative evidence was

harmless error.”).

4. The evidence was sufficient to support the conviction. The jury heard

evidence that Clay purchased the car the day before his arrest and that

police found the car’s title in his wallet. The officer who searched the

vehicle testified that he could see the butt of the firearm on the floorboard

when he opened the car door. A reasonable juror could find beyond a

reasonable doubt that Clay knowingly possessed the firearm. See United

States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005); United States v.

Pennington, 20 F.3d 593, 598 (5th Cir. 1998).

5. Finally, there was no error in the jury instructions. As we have already

determined, the jury could infer that Clay knowingly possessed the

firearm from his ownership or control of a car with a handgun visible

underneath the driver’s seat. The district court did not abuse its

discretion. See United States v. Redd, 355 F.3d 866, 873–74 (5th Cir.

2003).

AFFIRMED.