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Click here for the full text of this decision FACTS:Odessa police placed Marcus McCowan’s suspected residence under watch. Detectives reported seeing McCowan at the house twice. On Oct. 13, 2004, detectives obtained a search warrant for the house and an arrest warrant for its occupants. Prior to the execution of the warrant, detectives saw Phidel Love arrive in a car, unlock the door with a key, enter the house and remain for 20 minutes. After his exit, the officers detained Love and brought him back to the house. Upon entering the dwelling in execution of the warrant, the officers encountered Heather Wilson, who informed them that McCowan resided there. The officers found two handguns in the living room, a .45 caliber handgun found under a couch and a .380 caliber handgun, with the serial number obliterated, found underneath a smaller couch. Beside the .380, approximately six to eight inches away, was a baggie of marijuana. The law enforcement officials found ammunition for the .380 in the only bedroom that appeared to have been used. At this point, the police outside the house saw McCowan pass by as a passenger in a car they recognized to be his brother’s. They chased the car down, returned him to the house, searched him and arrested him. They gave him Miranda warnings and began to question him. He gave them a statement in which he admitted: 1. He and Love resided at the house; 2. The handgun in question belonged to his mother; 3. He kept the handgun at the house for protection; 4. He knew its serial number had been filed off; 5. He knew that possession of a firearm with an obliterated serial number was unlawful; and 6. He thought the firearm probably had been stolen. The detectives also took statements from Love and Wilson. A detective testified that their statements substantially corroborated McCowan’s confession. McCowan was convicted of possession of a firearm with an obliterated serial number and sentenced to a term of imprisonment for 18 months, three years of supervised release and a $100 special assessment. On appeal, he challenged the refusal of the district court to suppress statements he made in a post-arrest interview; the denial by the district court of his motion for acquittal; the district court’s classification of him as a “prohibited person” and consequent increase of his offense level at sentencing; and the district court’s determination that McCowan was arrested while under a criminal justice sentence and the consequent addition of two criminal history points for sentencing purposes. HOLDING:Affirmed. Addressing the first point of error, the court stated that at the time of the arrest the officers knew that the warrant affidavit listed “Chuck” McCowan as a suspect; Marcus McCowan used and was known by that name; the occupant Wilson said McCowan lived in the house; the police had seen McCowan at the house twice before; the police saw McCowan motoring past the house during the search; and the search uncovered drugs and a firearm with an obliterated serial number. The combination of these facts, the court stated, was sufficient to give the officers probable cause to believe McCowan resided in the house and used it in connection with drug and handgun related crimes. Thus, the court stated, the police had probable cause to arrest him for these offenses. Consequently, the court stated, his post-arrest statement resulted from a lawful arrest. Accordingly, the court held that the district court did not err in denying McCowan’s motion to suppress his post-arrest statements. Addressing the second point of error, the court stated that confessions must be accompanied by sufficient corroborating evidence. Taking of the evidence together, the court found that the confession was substantially corroborated, because the evidence supported the inference that McCowan had knowledge of and access to the gun in question. Addressing the third point of error, the district court classified McCowan as a “prohibited person” because he was an “unlawful user of a controlled substance.” Based on this classification, the court increased his offense level at sentencing. But McCowan, the court stated, asserted that there was no evidence that he possessed the marijuana and the firearm simultaneously. The court disagreed, noting that McCowan admitted daily use of marijuana from age 13 to Aug. 2004 and the recreational use of cocaine at age 15, and tested positive for marijuana use in April 2005. McCowan’s drug use, the court stated, fell within the definition of “unlawful user” in that McCowan followed a pattern of use over an extended period of time. Accordingly, the court found no error on the part of the district court. Addressing the final point of error, McCowan asserted that the district court erred in considering him to be “under a criminal justice sentence,” which ultimately added two points to his criminal history. He argued that the Texas courts lacked jurisdiction over his probation under Texas law because they failed to exercise due diligence to execute the warrant for his probation violation. The court stated that the guidelines do not require it to consider the diligence of state authorities in executing the warrant. As a result, the court stated, the district court did not err in applying the two-point increase. OPINION:Dennis, J.; Higginbotham, Dennis and Clement, J.J.

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