* 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this opinion should not be published and is not precedent except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. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________________

No. 00-50372

________________________________

United States of America,

Plaintiff-Appellee,

v.

Al Lee McGruder,

Defendant-Appellant.

_____________________________________________

Appeal from the United States District Court

For the Western District of Texas

(MO-99-CR-67-2)

_____________________________________________

May 15, 2001

Before DAVIS, WIENER and STEWART, Circuit Judges.

PER CURIAM: *

Al Lee McGruder was convicted of one count of possession of

cocaine base in violation of 21 U.S.C. § 844(a) and one count of

being an unlawful user of a controlled substance in possession of

a fir earm in violation of 18 U.S.C. § 922(g)(3). McGruder now

challenges the district court ’s denial of his motion to suppress

certain evidence, the sufficiency of the evidence sustaining his

convi ction for violating 18 U.S.C. § 922(g)(3), and the

constitutionality of 18 U.S.C. § 922(g)(3) as applied to him in-2-

t h is case. For the reasons that follow, we affirm both of

McGruder’s convictions.

I.

Sergeant Alan Thompson of the Midland C ounty Sheriff’s

Departmen t observed a confidential informant make a controlled

purchase of crack cocaine at 2413 East California Street in

Midland, Texas. The informant told Thompson that the man with whom

he usually dealt at the house was not there, but that another man

had sold him the crack cocaine. Sergeant Thompson then determined

that th e man who had previously sold the crack cocaine to the

informant was an Allen Lumant Wilso n. The informant tentatively

confirmed Thompson’s conclusions, and Thompson obtained a warrant

to search the house at 2413 East California Street and to arrest

Allen Lumant Wilson.

Several officers from the Midland County Sheriff’s Department

executed the warrant on January 8, 1999. Upon approaching the

house, the officers saw two people inside, one of whom was

McGruder. McGruder, a black male who is 5'9" tall and weighs 165

pounds, bore some resemblance to Wilson, who was described in the

warrant as a black male who i s 5'11" tall and weighs 130 pounds.

The officers entered the house and secured McGruder and the other

occupant by handcuffing them and placing them on the floor. The

officers then searched McGruder’s person and discovered a matchbox

wrapped in currency in his front pants pocket. The matchbox

contained 1 8 rocks of crack cocaine. The search of the house-3-

turned up a loaded Smith & Wesson revolver hidden under a couch and

a rifle in one of the bedrooms. McGruder was then placed under

arrest and read his Miranda rights. McGruder then admitted to the

officers that he owned the revolver.

II.A.

McGruder first argues on appeal that the district court erred

in not suppressing the evidence the officers found while executing

the search warrant. In particular, he argues that the search of

his person was illegal because he was not the person named in the

warrant. He also argues that the affidavit prepared by Sergeant

Thompson in his application for the warrant was insufficient to

show pr obable cause. When reviewing the denial of a motion to

suppres s, we review factual findings for clear error and

conclusions of law de novo. U nited States v. Cherna

, 184 F.3d 403,

406 (5th Cir. 1999), cert. denied , 529 U.S. 1065, 120 S.Ct. 1669,

146 L.Ed.2d 479 (2000).

Where the police have probable cause to arrest one person and

they reasonably mistake a second person for the first person, then

the arrest of the second person is a valid arrest. H ill v.

California

, 401 U.S. 797, 802, 91 S.Ct. 1106, 28 L.Ed.2d 484

(1971); Blackwell v. Barton

, 34 F.3d 298, 303 (5th Cir. 1994). As

we have said, McGruder bore some resemblance to the description of

Wilson in the warrant. Based on that fact and the other facts

recited in the affidavit attached to the warrant - in particular,

the presence of crack cocaine at 2413 East California Street

- the1 We also note that the fact that McGruder was searched before

he was arrested is of no consequence in light of the fact that the

police were already authorized to arrest McGruder by virtue of the

warrant. Rawlings v. Kentucky , 448 U.S. 98, 111, 100 S.Ct. 2556,

65 L.Ed.2d 633 (1980); United States v. Hernandez

, 825 F.2d 846,

852 (5th Cir. 1987).

-4- officers had a good faith belief that they were arresting the right

person. I d

. Thus, McGruder’s arrest was valid even though he was

not the person named in the warrant which the officers were

executing. As McGruder’s arrest was valid, the officers were

authorized to search his person for any evidence of a crime.

United States v. Robinson

, 414 U.S. 218, 235, 94 S.Ct . 467, 38

L.Ed.2d 427 (1973); United States v. Ivy

, 973 F.2d 1184, 1187 (5th

Cir. 1992), overruled on other grounds by Unite d States v.

Thompson , 122 F.3d 304 (5th Cir. 1998). 1

Concerning the affidavit of Sergeant Thompson, we will not

reach the question of probable cause if the good faith exception

to the exclusionary rule announced in United States v. Leon

, 468

U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies.

Cherna

, 184 F.3d at 407; United S tates v. Shugart , 117 F.3d 838,

843 (5th Ci r. 1997). That is, we will not reach the question of

probable cause so long as the officers’ reliance on the warrant was

objectively reasonable. McGruder argues that Sergeant Thompson’s

affidavit so lacks indicia of probable cause as to make the

officers’ reliance on it objectively unreasonable. See Leon , 468

U.S. at 915; Shugart , 117 F.3d at 844.

We agree with the distr ict court that Sergeant Thompson’s-5-

affidavit is not “bare bones”. The affidavit states that the

confidential informant had seen drugs at 2413 East California

Street and that the informant had given reliable information in the

past. The affidavit has the facts and circumstances from which a

magistrate could make an independent determ ination about the

existence of probable cause. As such, the officers who executed

the warrant were objectively reasonable in relying on the warrant

to establish probable cause. U nited States v. Fields

, 72 F.3d

1200, 1214 (5th Cir. 1996).

B.

McGruder next argues on appeal that the evidence was

insufficient to show that he was an unlawful user of a controlled

substance for the purposes of 18 U.S.C. § 922(g)(3). We review the

sufficiency of the evidence in the light most favorable to the

verdict to determine if a reasonable trier of fact could have found

the element of the crime in question beyond a reasonable doubt.

Id . at 1210.

Texas State Trooper Jim Faulkner testified that he stopped a

car in which McGruder was a passenger on July 27, 1997. Faulkner

smelled marijuana smoke in the car and was told by McGruder that he

had been smoking marijuana earlier in the day. Faulkner also found

marijuana under the seat in which McGruder was sitting. Officer

Jordan Medrano of the Odessa Police Department testified that

McGruder was present in a hotel room that Medrano searched on

September 21, 1998. Medrano found crack cocaine during the search2 McGruder was in fact indicted for possession of cocaine base

with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

The jury found him guilty of the lesser included offense of simple

possession of cocaine base in violation of 21 U.S.C. § 844(a).

-6- and McGruder admitted to smoking marijuana with the other occupants

of the hotel room. Finally, McGruder’s counsel argued that the

crack cocaine found on McGruder’s person during the search of 2413

East California Street was more consistent with possession for

personal use than with possession with an intent to distribute. 2

The evidence was clearly sufficient to allow the jury to conclude

that McGruder was an unlawful user of a controlled substance.

C.

McGruder’s last argument on appeal is that 18 U.S.C. §

922(g)(3) is unconstitutional as applied to him. In particular,

McGruder argues tha t the statute is unconstitutionally vague

because it does not define the time frame in which a defendant must

use a controlled sub stance in connection with possession of a

firearm. We review the constitutionality of a federal statute de

novo. United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999),

cert. denied

, 526 U.S. 1126, 119 S.Ct. 1783, 143 L.Ed.2d 811

(1999).

Given the evidence reviewed above concerning McGruder’s drug

use, an ordinary person would clearly understand th at McGruder’s

actions established him as an unlawful user of a controlled

substance at the time the officers discovered that McGruder

possessed a firearm. United States v. Edwards , 182 F.3d 333, 335-7-

(5th Cir. 1999).

For the above reasons, the judgment of the district court is

AFFIRMED.

AFFIRMED.