IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 99-41238 ____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
BRUCE GALEN EVERETT,
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court for the Eastern District of Texas (4:98-CR-80-ALL) _________________________________________________________________ November 2, 2000
Before KING, Chief Judge, PARKER, Circuit Judge, and KAZEN,* District Judge.
PER CURIAM:**
Bruce Galen Everett was convicted on two counts of being a
felon in possession of ammunition that had been shipped in
interstate commerce in violation of 18 U.S.C. § 922(g)(1) (2000).
The district court enhanced Everett’s sentence under § 4B1.4 of
* District Judge of the Southern District of Texas, sitting by designation. ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. the U.S. Sentencing Guidelines, finding that he was an “armed
career criminal.” See U.S. SENTENCING GUIDELINES MANUAL § 4B1.4
(1998). Consequently, Everett was sentenced to 188 months in
prison on each count, to run concurrently. Everett timely
appealed both the conviction and the sentence. For the following
reasons, we AFFIRM.
I. FACTS AND PROCEDURAL HISTORY
On October 23, 1998, the Plano Police Department received a
domestic violence call at Everett’s residence. Several Plano
police officers were dispatched to Everett’s home, and when they
arrived, they were met by a visibly upset Joanna Everett,
Everett’s wife. During the ensuing conversation with Mrs.
Everett, she revealed that she feared her husband was “reverting
to his old ways” and was acting very paranoid and violent.
Moreover, Mrs. Everett related to the officers that Everett kept
a pistol and ammunition hidden in the home. While the officers
were speaking to Mrs. Everett, Everett exited the house. Upon
investigating the domestic disturbance, the police arrested
Everett for family violence.1
After Everett was transported to the Plano Police
Department, Mrs. Everett offered to take Officer Jeff Rich into
the home and help him look for the pistol. Mrs. Everett led Rich
to the closet of the master bedroom, where Rich discovered an
1 Mrs. Everett subsequently decided not to press charges against Everett and bonded him out of jail.
2 empty pistol pouch and a pellet pistol. Mrs. Everett informed
Rich that her husband had another handgun in addition to the
pellet pistol. A further search, however, failed to reveal any
firearms.
As another officer continued to search the closet, Mrs.
Everett directed Rich to a chest of drawers in the master
bedroom. Mrs. Everett identified the chest of drawers as her
husband’s. The chest of drawers was filled with male clothing,
and auto parts were on top of it.2 In the top drawer, which Mrs.
Everett identified as “his drawer,” the officers found several
pocket knives and a number of loose rounds of ammunition of
varying caliber. A further search of the chest of drawers
revealed no other ammunition.
On October 28, 1998, Rich was contacted by Joe Patterson, a
special agent with the Bureau of Alcohol, Tobacco, and Firearms
(ATF). Based upon Rich’s account of the search of Everett’s
home, Patterson applied for and was granted a search warrant to
search the Everett home for firearms and ammunition. The ATF
executed the warrant on October 30 and discovered the seventeen
rounds of loose ammunition observed by Rich during his search of
the residence. In addition, the ATF unearthed three boxes of 9mm
ammunition in the bottom drawer of the same chest of drawers in
2 There was a second chest of drawers in the master bedroom that contained only female clothing.
3 which the loose ammunition was located. No firearms were
discovered.
Everett was arrested and indicted on two counts of being a
felon in possession of ammunition in violation of 18 U.S.C.
§ 922(g)(1). In the first count, Everett was charged with being
in possession of the three boxes of 9mm ammunition. The second
count charged Everett with possession of the loose ammunition.
After a jury trial, Everett was found guilty on both counts of
the indictment and, based upon his status as an armed career
criminal, was sentenced to 188 months on each count, with the
sentences to run concurrently.
Everett raises several issue on appeal, and we address each
in turn.
II. ADMISSIBILITY OF EVERETT’S STATEMENT
First, Everett argues that a statement he made to Patterson
at the time of his arrest was inadmissible because he was under
custodial interrogation at the time he made the statement and had
received no Miranda warnings. After the ammunition was
discovered by the ATF, and Patterson made an initial
determination that it had been manufactured outside the state,
Patterson radioed the Plano police officers who had Everett under
surveillance and requested that they detain him. When Patterson
arrived at the scene where Everett was being detained, he
approached Everett to arrest him. At that time, Patterson
4 introduced himself and informed Everett that he “was being
arrested for violations of the federal firearms laws.” To this,
Everett replied that he did not possess any firearms. Patterson
then stated that he was being arrested for being in possession of
ammunition. At that point, Everett looked at Patterson and
responded, “Hypothetically, I didn’t realize that a convicted
felon couldn’t possess ammunition.”
At the time he made the statement, Everett had not been
advised of his Miranda rights. Everett maintains that at the
time of the exchange, he was in custody, Patterson purposefully
engaged him in conversation, and such conversation “constituted
an interrogation within the broad meaning of the concept.” The
government responds that Everett’s statement was voluntary and
was not in response to custodial interrogation.
A. Standard of Review
Miranda warnings must be given prior to custodial
interrogation. See United States v. Paul, 142 F.3d 836, 843 (5th
Cir. 1998). “The question of whether Miranda’s guarantees have
been impermissibly denied to a criminal defendant, assuming the
facts as established by the trial court are not clearly
erroneous, is a matter of constitutional law, meriting de novo
review.” United States v. Harrell, 894 F.2d 120, 122-23 (5th
Cir. 1990); see also United States v. Gonzales, 121 F.3d 928, 938
(5th Cir. 1997). In reviewing a ruling on a motion to suppress,
we view the evidence in the light most favorable to the party
5 that prevailed on the motion in the district court.3 See
Gonzales, 121 F.3d at 938.
B. Everett’s Statement Was Voluntary
and Admissible
The parties do not contest that Everett was in custody at
the time of the statement. At issue is whether the exchange
between Patterson and Everett constituted “interrogation” within
the meaning of Miranda. “Custodial interrogation” has been
defined by the Supreme Court as “‘questioning initiated by law
enforcement officers after a person has been taken into
custody.’” Illinois v. Perkins, 496 U.S. 292, 296 (1990)
(quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)).
Everett was, in fact, in custody at the time he made the
statement, but this statement was not in response to “questioning
initiated by law enforcement officers.” See Gonzales, 121 F.3d
at 939-40. Everett’s statement was voluntary; the police did not
ask him a single question. We recognize that “‘interrogation’
under Miranda refers not only to express questioning, but also to
any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response
from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301
3 We understand that the defense counsel made an oral motion to suppress Everett’s statement prior to jury selection. The court denied the motion. This information was not made part of the record.
6 (1980) (footnote omitted). However, Everett’s statement was not
initiated by “a measure of compulsion above and beyond that
inherent in custody itself.” Id. at 300. Indeed, his statement
was not prompted by Patterson, but was made in response to being
informed of the circumstances warranting his arrest. As such,
the exchange between Everett and Patterson cannot be
characterized as custodial interrogation, and the statement was
therefore admissible.
III. SUFFICIENCY OF THE WARRANT
Everett moved to suppress the ammunition discovered during
the October 30 search, arguing that Patterson’s affidavit filed
in support of the search warrant failed to set forth facts
establishing probable cause. Therefore, Everett asserted that
the search was invalid. The district court denied Everett’s
motion to suppress, concluding that the evidence was admissible
because the good faith exception to the exclusionary rule applied
and that, in any event, Patterson’s affidavit was sufficient to
establish probable cause.
When reviewing the denial of a motion to suppress, we review
factual findings for clear error and review the district court’s
conclusion regarding the constitutionality of the law enforcement
7 action de novo. See United States v. Kelley, 140 F.3d 596, 601
(5th Cir. 1998). In reviewing a challenge to the sufficiency of
an affidavit supporting a search warrant, this court will
consider the affidavit “independently of the district court and
[is] not limited by the clearly erroneous standard of review.”
United States v. McKeever, 5 F.3d 863, 865 (5th Cir. 1993)
(internal quotations and citations omitted) (alteration in
original). Nonetheless, the court “owes deference to the
magistrate’s determination of probable cause and . . . must
construe the affidavit in a common-sense manner.” Id. (internal
quotations omitted) (quoting United States v. Jackson, 818 F.2d
345, 348 (5th Cir. 1982)).
B. Sufficient Probable Cause Existed
for the Warrant
Everett argues that Patterson’s supporting affidavit was
“the equivalent of a ‘bare bones’ affidavit” because it was
“derived solely from the observation of loose ammunition in a
dresser drawer” and thus lacked the necessary facts “from which a
Magistrate [could] independently determine probable cause.”4
Moreover, Everett contends that the affidavit failed to
demonstrate a “nexus” between the firearms and ammunition listed
in the warrant and interstate commerce.
4 Everett also asserts that the “conclusions rose to the level of deliberate or reckless material misstatement”; however, after a review of the record, we disagree.
8 The government responds that under the good faith exception
to the exclusionary rule, the search was valid. Moreover, it
states that the district court alternatively found that even if
the good faith exception did not apply, probable cause existed
for the warrant.
We agree with the district court that sufficient probable
cause existed for the issuance of the search warrant. Under the
“totality of circumstances” test, Patterson’s affidavit in
support of the warrant is sufficient to establish probable cause.
See Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
On October 23, the Plano police officers discovered the
ammunition in the top drawer of a chest of drawers that Everett’s
wife indicated was his. Moreover, Mrs. Everett told the Plano
police officers that Everett kept a weapon and ammunition in the
home. After a telephone interview with Officer Rich, Patterson
composed an affidavit relating Rich’s account of Mrs. Everett’s
statements, as well as Rich’s personal observation of the
ammunition. Drawing conclusions based upon his own experience,
Patterson supplemented the affidavit with his knowledge that the
type of ammunition described by Rich could not have been
manufactured in Texas and thus must have moved in interstate
traffic.
These facts, under a totality of the circumstances analysis,
support that there was a “fair probability” that the ammunition
would be found in Everett’s home. See Gates, 462 U.S. at 238.
9 Accordingly, the district court properly denied Everett’s motion
to suppress.
IV. SUFFICIENCY OF THE EVIDENCE
Everett contends that there was insufficient evidence to
support his conviction. To this end, Everett made two motions
for acquittal during trial, both of which were denied by the
district court.
This court reviews the denial of a motion for a judgment of
acquittal de novo. See United States v. De Leon, 170 F.3d 494,
496 (5th Cir. 1999). In doing so, we consider “‘whether, viewing
the evidence in the light most favorable to the government, a
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt.’” Id. (quoting United
States v. Greer, 137 F.3d 247, 249 (5th Cir.), cert. denied, 524
U.S. 920 (1998)).
B. The Evidence Was Sufficient to Support
the Convictions
A conviction under 18 U.S.C. § 922(g)(1) requires the
government to prove that (1) Everett was a convicted felon; (2)
who knowingly possessed the ammunition; and (3) the ammunition
traveled in or affected interstate commerce. See 18 U.S.C.
§ 1922(g)(1); De Leon, 170 F.3d at 496. Everett stipulated that
10 he had a prior felony conviction. However, Everett argues that
the evidence was insufficient to prove he “possessed” the
ammunition.
Possession may be either actual or constructive and may be
proved by circumstantial evidence. See United States v. Jones,
133 F.3d 358, 362 (5th Cir. 1998); see also De Leon, 170 F.3d at
496. A defendant may be found in constructive possession of the
ammunition if it is proven that he had “ownership, dominion or
control over an illegal item itself or dominion or control over
the premises in which the item is found.” De Leon, 170 F.3d at
496. However, if two or more persons jointly occupy the place in
which the ammunition was discovered, “mere control or dominion of
that place is, by itself, insufficient to establish constructive
possession.” United States v. Fields, 72 F.3d 1200, 1212 (5th
Cir. 1996). Additional evidence is required, and that evidence
must demonstrate “at least a plausible inference that the
defendant had knowledge of and access to the [contraband].” Id.
Accordingly, because Everett and his wife jointly occupied
the house and the bedroom in which the ammunition was found, we
must consider the additional evidence and determine if it creates
a “plausible inference” that Everett knew of and had access to
the ammunition. Although Everett claims that his dominion over
the house was insufficient to establish possession5 and that
5 Everett points to a number of cases in which a co- inhabitant of a dwelling had been found not to possess
11 there was testimony at trial indicating that he did not own the
ammunition, our review of the record leads us to the opposite
conclusion.
Everett points out that Mrs. Everett testified that the
loose ammunition actually belonged to her and that she had
inherited it from her deceased father. As to the 9mm ammunition,
Everett’s employee, Chris Odom, testified that on October 29, he
had purchased some cleaning supplies for Mrs. Everett at a local
Wal-Mart and bought the 9mm ammunition for himself. Odom claimed
that when he left the supplies at the Everetts’ home, he also
inadvertently left the ammunition.6
Viewing the evidence in the light most favorable to the
government and the credibility choices in favor of the verdict,
we find that there is sufficient evidence to support an inference
contraband. See, e.g., United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993) (finding there was no evidence that defendant was aware that there was a weapon in the house he shared with his girlfriend). Everett’s reliance on these cases is unavailing. For example, in Mergerson, the gun was found under the mattress; the defendant had only lived in the apartment for one month prior to his arrest; and the defendant produced a pawn shop receipt demonstrating that the gun in question had been purchased by the girlfriend before the defendant moved into the apartment. 6 Odom was subsequently indicted on one count of aggravated perjury. An investigation revealed that only one box of 9mm ammunition, as opposed to three boxes, was purchased on the day Odom claimed he bought the cleaning supplies and ammunition. Moreover, the one box of ammunition purchased at the local Wal-Mart on that day was purchased by credit card, as opposed to cash, with which Odom claimed he paid. Odom pled guilty to one count of making false declarations before a court in violation of 18 U.S.C. § 1623.
12 that Everett had knowledge of and access to the ammunition.
Everett owned the home in which the ammunition was discovered;
the ammunition was found in Everett’s chest of drawers7; and his
statement to Patterson at the time of his arrest implied that he
knew ammunition was in the house. Accordingly, we find that
there was sufficient evidence supporting Everett’s conviction.
V. DOUBLE JEOPARDY
The jury found Everett guilty of two counts of being a felon
in possession of ammunition. One count concerned the 9mm
ammunition located in the bottom drawer of Everett’s chest of
drawers, and the second count involved the loose ammunition
discovered in the top drawer. Everett was sentenced to 188
months in prison and five years supervised release on each count,
with the sentences to run concurrently. Moreover, Everett
received a fine of $17,500 ($8750 for each count)8 and a special
7 We note that when the loose ammunition was discovered in the top drawer of the dresser on October 23, Mrs. Everett told the police not only that the drawer was her husband’s, but that she never went into it and that anything in the drawer would be his property. There was no objection to the admissibility of these hearsay statements by Mrs. Everett. Hearsay admitted without objection “‘is to be considered and given its natural probative effect as if it were in law admissible.’” United States v. Gresham, 585 F.2d 103, 106 (5th Cir. 1978) (quoting Daniel v. United States, 234 F.2d 102, 107 (5th Cir. 1956)). 8 Under § 5E1.2 of the U.S. Sentencing Guidelines, the minimum fine for a defendant with an offense level of 33 is $17,500 for each offense; however, the district court chose to
13 assessment of $200 ($100 for each count). Everett contends that
these sentences violate the Double Jeopardy Clause of the
Constitution.
Because Everett failed to object to the sentencing on both
counts at the sentencing hearing and raises the issue of double
jeopardy for the first time on appeal, this court reviews his
sentence for plain error. See United States v. Pineda-Ortuno,
952 F.2d 98, 105 (5th Cir. 1992) (addressing double jeopardy
claim under plain error even though defendant failed to raise it
at trial).
B. There Was No Double Jeopardy Violation
Under Plain Error Review
The Double Jeopardy Clause of the Fifth Amendment prohibits
the government from charging a single offense in several counts
and is intended to prevent multiple punishments for the same act.
See United States v. Kimbrough, 69 F.3d 723, 729 (5th Cir. 1995);
United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992). The
Double Jeopardy Clause may be violated even in a case of
concurrent sentences. See Ball v. United States, 470 U.S. 856,
864 (1985). Moreover, “for double jeopardy purposes, sentences
are not truly concurrent where a mandatory special assessment is
fine Everett a total of $17,500.
14 separately imposed on each conviction.” Kimbrough, 69 F.3d at
729; Berry, 977 F.2d at 920.
To ascertain whether Everett’s sentences violate the Double
Jeopardy Clause, we must determine if “‘separate and distinct
prohibited acts, made punishable by law, have been committed.’”
United States v. Lemons, 941 F.2d 309, 317 (5th Cir. 1991)
(quoting United States v. Swain, 757 F.2d 1530, 1537 (5th Cir.),
cert. denied, 474 U.S. 825 (1985)) (considering whether
“continuous” scheme to defraud was single offense or whether it
contained separate offenses). In United States v. Berry, the
court found that it was error to convict a defendant on three
counts of being a felon in possession of a firearm when a single
search yielded three firearms. See 977 F.3d at 919. The court
determined that, while it was not error to prosecute Berry on a
separate count for each weapon, convicting and sentencing him on
multiple counts violated Berry’s rights under the Double Jeopardy
Clause. See id. The Berry court suggested that had the
government demonstrated that Berry obtained the guns at different
times, or stored them in different places, sentencing on three
separate counts might have been appropriate. See id. at 920.
As in Berry, double jeopardy is implicated in this case
because Everett received a mandatory special assessment of $100
for each count. See id.; see also U.S. SENTENCING GUIDELINES MANUAL
§ 5E1.3. Berry suggests that one method for obviating a
violation of the Double Jeopardy Clause in the case of the
15 violations of § 922(g)(1) at issue here would be to show that
Everett obtained the ammunition at separate times. See Berry,
977 F.2d at 920.
The question presented, thus, is whether it is a permissible
inference to draw from the evidence presented at trial that
Everett obtained the ammunition on separate occasions. On
October 23, Officer Rich searched Everett’s chest of drawers and
discovered only the loose ammunition. The subsequent search on
October 30 revealed the three boxes of 9mm ammunition in the same
chest of drawers. Viewing this evidence in the context of a
plain error review, we conclude that it is certainly permissible
to infer that Everett obtained the ammunition at separate times.
Therefore, we find no double jeopardy violation.
VI. SENTENCING DEPARTURE
Finally, Everett asserts that the district court erred in
applying the armed career criminal guideline and enhancing his
sentence under § 4B1.4 of the U.S. Sentencing Guidelines. See
U.S. SENTENCING GUIDELINES MANUAL § 4B1.4. The district court
assessed Everett’s guideline calculations under § 4B1.4 at an
offense level of 33 and a criminal history category of IV, with a
sentencing range of 188 to 235 months. Accordingly, Everett was
concurrently sentenced on each count to the minimum sentence of
188 months.
16 This court reviews the district court’s factual findings for
the purposes of sentencing for clear error, and the court’s legal
application of the Sentencing Guidelines de novo. See United
States v. Franklin, 148 F.3d 451, 459 (5th Cir. 1998). We may
disturb sentences imposed under the guidelines if the sentence is
“‘imposed in violation of law, as a result of an incorrect
application of the sentencing guidelines, or . . . outside of the
applicable guideline range and . . . unreasonable.’” United
States v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993) (citations
omitted) (alterations in original) (quoting United States v.
Acosta, 972 F.2d 86, 90 (5th Cir. 1992)).
B. Application of Armed Career Criminal Guideline
Did Not Violate Eighth Amendment
Everett concedes that the Presentence Investigation Report
accurately reflects that he had been convicted of three counts of
armed bank robbery and one count of an assault on a federal
officer. Moreover, Everett acknowledges that such convictions
can support the application of the armed career criminal
guidelines. Nonetheless, Everett argues that the enhancement he
received violates the Eighth and Fourteenth Amendments of the
The Eighth Amendment prohibits sentences that are grossly
disproportionate to the crime for which the defendant has been
convicted. See United States v. Gonzales, 121 F.3d 928, 942 (5th
Cir. 1997). For this analysis, we must first compare the gravity
17 of the charged offense with the severity of the sentence. See
id.; Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir. 1996).
Only if the sentence is grossly disproportionate may we consider
whether the sentence offends the Eighth Amendment. See
Smallwood, 73 F.3d at 1347.
Given the gravity of Everett’s prior convictions9 and the
evidence produced at trial, a 188-month sentence is not grossly
disproportionate to the crime charged. Everett was convicted of
possessing ammunition. He was also a thrice convicted bank
robber. Accordingly, we find that the enhancement under the
armed career criminal guidelines did not violate the Eighth and
Fourteenth Amendments in this case, and we conclude that the
district court did not err in enhancing Everett’s sentence under
this provision.
9 This court considers the Supreme Court case of Rummel v. Estelle, 445 U.S. 263 (1980), to be the touchstone for determining whether a sentence violates the Eighth Amendment’s proscription against cruel and unusual punishment. See Smallwood, 73 F.3d at 1347-48. In Rummel, the Supreme Court held that a sentence of life imprisonment with an opportunity for parole after twelve years did not constitute cruel and unusual punishment in a situation in which the defendant, convicted of obtaining $120.75 by false pretenses, had two prior felony convictions. See Rummel, 445 U.S. at 285. Our decision that Everett’s sentence is not cruel and unusual is bolstered by a comparison to Rummel. Because Everett’s prior convictions were for violent felonies, and Rummel’s prior convictions were “non- serious” (passing a bad check and a forged check), we conclude that “[t]here can be no argument, in the light of Rummel, that [Everett]’s sentence is disproportionate, much less grossly disproportionate, to his offense. . . . Rummel’s record of offenses was much less grave than [Everett]’s.” McGruder v. Puckett, 954 F.2d 313, 317 (5th Cir.), cert. denied, 506 U.S. 849 (1992); see also Smallwood, 73 F.3d 1347-48.
18 VII. CONCLUSION
For the reasons stated above, the judgments of conviction
and sentence are AFFIRMED.