United States v. Bui , 281 F. App'x 381 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 12, 2008
No. 07-60849
Summary Calendar Charles R. Fulbruge III
Clerk
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.
*
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should not be published and is not precedent except under the limited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.
No. 07-60849
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, fact-
specific 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
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No. 07-60849
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.
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