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United States v. Johnson ( 2023 )


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  • Case: 22-20300         Document: 00516749508             Page: 1      Date Filed: 05/12/2023
United States Court of Appeals
for the Fifth Circuit                                        United States Court of Appeals
Fifth Circuit
____________                                      FILED
May 12, 2023
No. 22-20300                               Lyle W. Cayce
Summary Calendar                                  Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Demarcus Shon Johnson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CR-238-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Demarcus Shon Johnson was convicted after a jury trial of possession
of a firearm by a felon in violation of
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2).
The district court sentenced him to 50 months of imprisonment and two
years of supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20300      Document: 00516749508          Page: 2    Date Filed: 05/12/2023
No. 22-20300
Johnson appeals the district court’s denial of the motion to suppress
the firearm that was found during a search of the vehicle he had been driving.
We review the district court’s factual findings, including its credibility
determinations, for clear error and its legal conclusions de novo. United
States v. Bass,
    996 F.3d 729
    , 736 (5th Cir. 2021). “A factual finding is not
clearly erroneous as long as it is plausible in light of the record as a whole.”
    Id.
     (internal quotation marks and citation omitted). “Where a district court’s
denial of a suppression motion is based on live oral testimony, the clearly
erroneous standard is particularly strong because the judge had the
opportunity to observe the demeanor of the witnesses.”
    Id. at 736-37
    (internal quotation marks and citation omitted). Moreover, we view the
evidence in the light most favorable to the prevailing party, which is the
Government in this case. See
    id. at 737
    .
A warrantless search of an automobile is permitted by the Fourth
Amendment if the police officers have probable cause to believe that the
vehicle contains contraband. United States v. Fields,
    456 F.3d 519
    , 523 (5th
Cir. 2006). In addition, where probable cause justifies the search of the
vehicle, “it justifies the search of every part of the vehicle and its contents
that may conceal the object of the search.” California v. Acevedo,
    500 U.S. 565
    , 570 (1991) (internal quotation marks and citation omitted). Given that a
police officer testified that he smelled marijuana coming from the vehicle and
that he observed an empty firearm holster in the vehicle, the officers had
probable cause to search the vehicle. See United States v. Ibarra-Sanchez,
    199 F.3d 753
    , 760 (5th Cir. 1999); United States v. McSween,
    53 F.3d 684
    , 686 (5th
Cir. 1995).
Johnson also contends that § 922(g)(1) violates the Second
Amendment. Because Johnson did not make this argument in district court,
we review only for plain error. See United States v. Knowles,
    29 F.3d 947
    , 950
(5th Cir. 1994). To show plain error, Johnson must show a forfeited error
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Case: 22-20300      Document: 00516749508           Page: 3     Date Filed: 05/12/2023
No. 22-20300
that is clear or obvious and that affects his substantial rights. See Puckett v.
United States,
    556 U.S. 129
    , 135 (2009). If he makes such a showing, we have
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See
    id.
    In particular, Johnson asserts that the Supreme Court’s recent
decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,
    142 S. Ct. 2111 (2022)
    , suggests that § 922(g)(1) is unconstitutional. An error is not clear or
obvious where an issue is disputed or unresolved, or where there is an
absence of controlling authority. United States v. Rodriguez-Parra,
    581 F.3d 227
    , 230-31 (5th Cir. 2009). In fact, “[e]ven where the argument requires
only extending authoritative precedent, the failure of the district court [to do
so] cannot be plain error.” Wallace v. Mississippi,
    43 F.4th 482
    , 500 (5th Cir.
2022) (internal quotation marks and citation omitted). Because there is no
binding precedent explicitly holding that § 922(g)(1) is unconstitutional and
because it is not clear that Bruen dictates such a result, Johnson is unable to
demonstrate an error that is clear or obvious. See Rodriguez-Parra,
    581 F.3d at 230-31
    .
The judgment of the district court is AFFIRMED.
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