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should not be published and is not precedent except under the limited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

1 As a threshold matter, the government asserts that Johnson’s notice of

appeal was premature and has not vested this court with jurisdiction. A timely

notice of appeal is a prerequisite to this court’s exercise of jurisdiction.

United States v. Winn, 948 F.2d 145, 153 (5th Cir. 1991). While Johnson

prematurely filed his notice of appeal after the verdict but prior to sentencing

and entry of the judgment of conviction, his notice of appeal is nevertheless

effective to appeal his conviction. See id. at 154. Furthermore, since

Johnson’s intent to appeal his sentence is apparent from his briefs and the

government has not asserted that any prejudice would result from considering his

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-20045

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY RAY JOHNSON,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CR-511-1

 

July 18, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Johnny Ray Johnson appeals his bench-trial conviction and

sentence for being a felon in possession of firearms and ammunition

in violation of 18 U.S.C. § 922(g)(1).1 He argues that there was
challenges to his sentence, Johnson’s notice of appeal is also effective to

appeal his sentence. See id. at 154-55.

2 See United States v. Rosas-Fuentes, 970 F.2d 1379, 1381 (5th Cir. 1992)

(stating the standard for challenges to the sufficiency of the evidence following

a bench-trial conviction).

3 See United States v. De Leon, 170 F.3d 494, 496-97 (5th Cir. 1999). 

2

insufficient evidence to support a finding of possession as

required to convict under section 922(g)(1) and that the district

court erred in applying two sentencing enhancements to upwardly

adjust his sentence.

 There is no merit to Johnson’s contention that there was

insufficient evidence to establish that he possessed the firearms

or ammunition as required for a conviction under 18 U.S.C. §

922(g)(1). Drawing all reasonable inferences in favor of the

government, the evidence at trial provided sufficient support for

the district court’s finding that Johnson illegally possessed the

firearms and ammunition.2 Johnson’s constructive possession of the

front bedroom at 5514 Rue Street in which the firearms and

ammunition were found was established by, inter alia, the evidence

that he and Tytheras Blackmon both stated that he lived at the 5514

Rue Street address, that his Texas identification card bore that

address, that he stated that he lived in the front bedroom of the

house, and that his clothes were found in that room.3

Even assuming that Johnson jointly occupied the room with

Blackmon, it can be plausibly inferred, using a commonsense, factspecific approach, that Johnson had knowledge of and access to the
4 See United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).

5 See United States v. Freeman, 164 F.3d 243, 251 (5th Cir. 1999); United

States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).

3

firearms and ammunition.4 The evidence showed that the three

firearms were found in a dresser drawer, the crack cocaine to which

Johnson pleaded guilty in state court to possessing was found on

top of and under the same dresser or another dresser in the small

bedroom, and the ammunition was found in the closet in which

Johnson’s clothes were located.

There is likewise no merit to Johnson’s assertions that the

district court erred in upwardly adjusting his sentence pursuant to

U.S.S.G. §§ 2K2.1(b)(1)(A) & 2K2.1(b)(5). As there was sufficient

evidence to support the district court’s determination at trial

beyond a reasonable doubt that Johnson possessed the firearms and

ammunition at issue in this case, the district court did not err,

clearly or otherwise, in determining at sentencing by a

preponderance of the evidence that Johnson’s offense involved three

firearms and that Johnson possessed the firearms and ammunition

based on the evidence at trial, which Johnson failed to demonstrate

was materially untrue.5 Furthermore, the district court did not

err, clearly or otherwise, in determining that Johnson’s related

state court conviction for possession of cocaine arising from his
6 See U.S. SENTENCING GUIDELINES MANUAL § 2K2.1, cmt. n.7 (“‘Felony offense,’

as used in subsection (b)(5), means any offense (federal, state, or local)

punishable by imprisonment for a term exceeding one year, whether or not a

criminal charge was brought, or conviction obtained.”); TEX. HEALTH & SAFETY CODE

ANN. §§ 481.102(3)(D) & 481.115(b); TEX. PENAL CODE § 12.35(a).

4

February 28, 2000 arrest was a felony offense for purposes of

U.S.S.G. § 2K2.1(b)(5).6

The judgment of the district court is AFFIRMED.