United States v. Dunn

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 12, 2002
• Docket: 01-21302
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21302 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE DUNN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-486-ALL -------------------- August 8, 2002 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Bennie Dunn (“Dunn”) appeals his conviction for being a felon

in possession of a firearm in and affecting interstate commerce.

Dunn argues that the district court erred in finding that his

common law wife, Ceylon Collins (“Collins”), had the authority to

consent to the search of his home. Dunn also contends that the

evidence presented at his trial was insufficient to support the

interstate commerce element of an 18 U.S.C. § 922(g)(1) offense.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21302 -2- This court applies a two-tier standard in reviewing a district

court’s denial of a motion to suppress. United States v. Hunt, 253

F.3d 227, 229 (5th Cir. 2001). The district court’s fact findings

are reviewed for clear error and its ultimate conclusion as to the

constitutionality of the law enforcement action is reviewed de

novo. Id. at 229-30.

A warrantless search is justified if it was conducted with

voluntary consent “obtained from a third party who possessed common

authority over or other sufficient relationship to the premises or

effects sought to be inspected.” United States v. Matlock, 415

U.S. 164, 171 (1974). The district court did not err in finding

that Collins had the authority to consent to the search of Dunn’s

house because she lived at the house for three and a half years,

and she assisted in paying the household expenses. Furthermore,

Collins’ sole reason for leaving the house on the day preceding

Dunn’s arrest was that Dunn had physically assaulted her.

Dunn’s argument that the evidence was insufficient to establish

that the firearm affected interstate commerce also fails.1 Because

the evidence offered against Dunn indicated that the firearm he

possessed in Texas was not manufactured in Texas, Dunn’s conviction

is supported by the evidence. See United States v. Pierson, 139

F.3d 501, 503 (5th Cir. 1998); United States v. Rawls, 85 F.3d 240,

242 (5th Cir. 1996).

1 Dunn acknowledges that this argument is foreclosed by circuit precedent, but raises the issue to preserve it for Supreme Court review. No. 01-21302 -3- AFFIRMED.