
    UNITED STATES of America, Plaintiff-Appellee, v. Dean Russell SHELTON, Defendant-Appellant. United States of America, Plaintiff-Appellant, v. Dean Russell Shelton, Defendant-Appellee.
    Nos. 07-30493, 07-30494.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Nov. 18, 2008.
    Withdrawn April 5, 2010.
    Resubmitted June 28, 2011.
    Filed Sept. 12, 2011.
    Aine Ahmed, Assistant U.S. Attorney, USSP-Office of the U.S. Attorney, Spokane, WA, for Plaintiff-Appellee.
    Rebecca Louise Pennell, Esquire, Assistant Federal Public Defender, Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for Defendant-Appellant.
    
      Before: KOZINSKI, Chief Judge, B. FLETCHER and RAWLINSON, Circuit Judges.
   ORDER

On April 5, 2010, and again on July 22, 2010, we granted the Government’s motion to stay the mandate in these appeals while the Solicitor General pursued a writ of certiorari in United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir.2009), reh’g en banc denied, 598 F.3d 1095 (9th Cir.2010). The Supreme Court granted certiorari, vacated the judgment and remanded Gonzalez for further consideration in light of its recent opinion in Davis v. United States,—U.S.-, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). United States v. Gonzalez,—U.S.-, 131 S.Ct. 3055, 180 L.Ed.2d 881 (2011). In light of these developments, we lift the stay and withdraw our memorandum disposition filed on March 29, 2010 and published at United States v. Shelton, 374 Fed.Appx. 736 (9th Cir.2010). A new memorandum disposition will be filed separately.

MEMORANDUM

Defendant Dean Russell Shelton appeals his conviction for possession of a firearm and ammunition by a prohibited person in violation of 18 U.S.C. § 922(g)(1). The Government cross-appeals Shelton’s sentence. We have jurisdiction under 28 U.S.C. § 1291.

Shelton challenges his conviction on two grounds: 1) his motion to suppress filed below was denied in error and 2) there was insufficient evidence presented at trial to justify his conviction. We review a district court’s determination of a motion to suppress as to issues of law de novo and as to its findings of fact for clear error. United States v. Jensen, 425 F.3d 698, 704 (9th Cir.2005).

On January 6, 2007, the police found a firearm in a vehicle registered to and occupied by Shelton during a warrantless search. The police searched the vehicle after arresting Shelton and his passenger and removing them from the vehicle. The police found a handgun behind the panel of the driver-side inner door. Shelton filed a motion to suppress, asserting in part that neither the initial stop of the vehicle nor the subsequent search were justified. The district court denied the motion, finding the search proper under the United States’s Supreme Court’s ruling in New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). At that time, we read Belton as permitting a warrant-less vehicle search incident to the arrest of an occupant of the vehicle. See United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir.2006) (“Applying the Belton rule, we have held that a warrantless automobile search will be valid if it is ‘roughly contemporaneous with the arrest.’ ” (quoting United States v. Smith, 389 F.3d 944, 951 (9th Cir.2004))).

We stayed the current appeal pending the Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), reviewing the Arizona Supreme Court’s holding that the broad reading of Belton taken by our and other courts was in error. The Court affirmed the Arizona Supreme Court and announced as the rule applicable to vehicle searches incident to arrest:

Police may search a vehicle incident to a recent occupant’s arrest only if the ar-restee is -within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Id. at 1723-24.

The Government conceded that, applying the rule stated in Gant, the search of Shelton’s vehicle was improper because Shelton was secured at the time of the search. The Government, however, argued that the search was in good faith under the then-prevailing interpretation of Belton and that, therefore, the exclusionary rule should not be applied. This argument was rejected in our opinion in United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir.2009), reh’g en banc denied, 598 F.3d 1095 (9th Cir.2010). We stayed the case a second time while the Government’s sought certiorari in Gonzalez. Recently, the Court granted certiorari, vacated the judgment and remanded Gonzalez for further consideration in light of its recent opinion in Davis v. United States,—U.S.-, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011). United States v. Gonzalez,—U.S.-, 131 S.Ct. 3055, 180 L.Ed.2d 881 (2011).

In Davis, the Court held that the good-faith exception applies to searches conducted in reliance on binding precedent:

It is one thing for the criminal “to go free because the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.

Id. at 2434.

Davis is dispositive of Shelton’s Fourth Amendment argument. We therefore affirm the district court’s denial of the motion to suppress.

Shelton also challenges the sufficiency of the evidence that he knowingly had possession of the handgun. See 18 U.S.C. § 922(g)(1); United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir.2010) (en banc). Viewing the evidence in the light most favorable to the prosecution, we conclude that “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jacksun v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). The police found the handgun in Shelton’s car, easily accessible behind a loose panel of the driver-side inner door. Shelton occupied the driver’s seat prior to and at the time of the arrest. Shelton claims that his passenger had been seen recently alone in the car, but the accuracy of that testimony is questionable. In any event, a reasonable jury could find that Shelton, and not his passenger, was in knowing possession of the gun. See United States v. Merriweather, 777 F.2d 503, 505, 507 (9th Cir.1985) (holding that the presence of a shotgun hidden in defendant’s car was sufficient to show possession despite the fact that another person had access to the car), cert. denied, 475 U.S. 1098, 106 S.Ct. 1497, 89 L.Ed.2d 898 (1986). Shelton’s conviction is affirmed.

Finally, we address the Government’s challenge to Shelton’s sentence. We review the legality of a sentence de novo. United States v. Avilar-Anguiano, 609 F.3d 1046, 1049 (9th Cir.2010). We agree that the district court erred when it held that, to be part of the sentencing calculus, prior convictions must be alleged in the indictment. See Almendarez-Torres v. United States, 523 U.S. 224, 243-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We therefore reverse and remand for re-sentencing. On remand, the district court should address Shelton’s argument that his prior convictions do not qualify as predicate offenses under the Armed Career Criminal Act.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     