USA v. Clark

Filing 920070423

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 23, 2007 Charles R. Fulbruge III Clerk No. 06-50457 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL EARL CLARK, Defendant-Appellant. -------------------Appeal from the United States District Court for the Western District of Texas USDC No. 5:04-CR-87 -------------------Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges. PER CURIAM:* Michael Earl Clark appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He challenges the sufficiency of the evidence supporting the district court's finding that he constructively possessed the weapon

discovered in a bag on the passenger floorboard of his vehicle. Clark argues that the evidence connecting him to the gun is equivocal, that an inference exists that the gun belonged to another passenger in the vehicle because the gun was found in a bag

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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near her and containing her belongings, and that the gun was not in plain view. We have held that when there is joint occupancy or presence at a location in which a weapon is found the court will apply a "`commonsense, fact-specific approach'" to determine if an

individual is in possession of the weapon. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).

United States v. Also, when there is

joint occupancy or joint presence of the location where the weapon is found, we have held that evidence must establish a plausible inference that the defendant had knowledge of, and access to, the weapon. Id.

The evidence presented at trial indicates that both officers saw Clark reaching toward the passenger floorboard as they

approached the vehicle, and Officer Marco Garza saw him place in the bag a shiny object that appeared to be a gun. Additionally,

the bag was open and leaning toward the driver side of the vehicle. The officers testified that they did not see any other weapons or shiny objects in the bag. Officer Garza also stated that he did

not see any other shiny objects in the front seat area or between the driver and passenger seats. The district court found credible

the testimony of Officers Garza and Fuller that Clark placed a shiny object in the bag, that the handgun was the only shiny object they saw direction. in the A bag, and of that the the bag was open in Clark's it was

review

evidence

indicates

that

sufficient for the district court to infer that Clark exercised 2

dominion and control over the gun, and therefore, that he had constructive possession of the firearm. 349. Thus, there is sufficient See Mergerson, 4 F.3d at to support Clark's

evidence

conviction. Clark also argues that § 922(g)(1) violates the Commerce Clause. He concedes that his contention is foreclosed by

controlling Fifth Circuit precedent, namely United States v. Rawls, 85 F.3d 240, 241-43 (5th Cir. 1996); however, he raises it to preserve it for possible review by the Supreme Court. this court may not overrule another panel. Taylor, 933 F.2d 307, 313 (5th Cir. 1991). One panel of

United States v. Clark's argument is

foreclosed by circuit precedent, and the district court's judgment should be affirmed. AFFIRMED.

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