United States v. Johnson

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
*
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should not be published and is not precedent except under the limited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
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, fact-
specific approach, that Johnson had knowledge of and access to the
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
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
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
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.
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