United States v. Clay , 336 F. App'x 403 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 4, 2009
No. 08-60554 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
GLEN B CLAY, also known as Glenn B Clay
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:07-CR-73-1
Before REAVLEY, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Glen B. Clay appeals his conviction and 235-month sentence for possession
of a firearm by a felon. We AFFIRM for the following reasons:
1. The district court did not err by assigning criminal history points for
several burglary convictions from 1983. Under U.S.S.G. § 4A1.2, any
portion of a sentence served within 15 years of the instant offense brings
the prior offense within the criminal history computation. The
presentence report summarized each of Clay's earlier convictions and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60554
sentences. It revealed that when Clay was paroled in 1990, approximately
thirteen years of his prior consecutive sentences had not been served. The
report also summarized his 1994 conviction of a new crime, which caused
the Mississippi state court to revoke his 1990 parole. By statute, the
revocation would have required Clay to serve the "remainder of the
sentence originally imposed . . . ." Miss. Code Ann. § 47-7-27. According
to the report relied upon by the district judge, the sentences from his 1983
convictions were to be served concurrently with the 1994 sentence. The
district judge found that Clay served a portion of the 1983 sentences
within 15 years of the instant offense. Because the finding is plausible in
light of the record as a whole, there is no clear error. See United States v.
Martinez-Moncivais, 14 F.3d 1030, 1038 (5th Cir. 1994).
2. Clay’s guidelines minimum sentence is not substantively unreasonable.
Clay argues that the nature of the offense and his distant criminal record
do not justify the sentence. But the district court considered these same
arguments and, after considering the factors under 18 U.S.C. § 3553(a),
rejected Clay’s request for a downward variance because of “the magnitude
of [his] criminal history.” We see no reason to disturb the presumptively
reasonable sentence. See United States v. Rodriguez, 523 F.3d 519, 526
(5th Cir. 2008).
3. We see no reversible error in the admission of the ATF agent’s
testimony. Given the agent’s significant qualifications, including his
education and law enforcement training and experience, the agent likely
would have been qualified to testify as an expert. See United States v.
Ollison, 555 F.3d 152, 163 (5th Cir. 2009). Moreover, we agree with the
Government that the testimony responded to Clay’s cross-examination of
the police officers on the issue of fingerprint evidence, see United States v.
Darland, 659 F.2d 70, 72 (5th Cir. 1982), and was cumulative to Clay’s
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No. 08-60554
own expert witness, who also testified that fingerprints are not easily
recovered from firearms. Even assuming error in the admission of the
testimony, it was harmless. See United States v. Hall, 500 F.3d 439, 444
(5th Cir. 2007) (“The erroneous introduction of cumulative evidence was
harmless error.”).
4. The evidence was sufficient to support the conviction. The jury heard
evidence that Clay purchased the car the day before his arrest and that
police found the car’s title in his wallet. The officer who searched the
vehicle testified that he could see the butt of the firearm on the floorboard
when he opened the car door. A reasonable juror could find beyond a
reasonable doubt that Clay knowingly possessed the firearm. See United
States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005); United States v.
Pennington, 20 F.3d 593, 598 (5th Cir. 1998).
5. Finally, there was no error in the jury instructions. As we have already
determined, the jury could infer that Clay knowingly possessed the
firearm from his ownership or control of a car with a handgun visible
underneath the driver’s seat. The district court did not abuse its
discretion. See United States v. Redd, 355 F.3d 866, 873–74 (5th Cir.
2003).
AFFIRMED.
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