USA v. Andres Jaimes

Filing

UNPUBLISHED OPINION FILED. [09-51045 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/10/2010 for Appellant Andres Aguirre Jaimes [09-51045]

USA v. Andres Jaimes

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Case: 09-51045

Document: 00511268406

Page: 1

Date Filed: 10/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-51045 S u m m a r y Calendar October 20, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. A N D R E S AGUIRRE JAIMES, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:09-CR-50-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A n d r e s Aguirre Jaimes appeals his jury trial conviction of possession of fir e a r m s in furtherance of a drug trafficking crime, namely, distributing powder c o c a in e , in violation of 18 U.S.C. § 924(c)(1)(A). Jaimes argues that the

G o v e r n m e n t failed to prove he possessed the firearms in furtherance of the drug t r a ffic k in g crime. B e c a u s e Jaimes preserved his challenge to the sufficiency of the evidence, w e review the sufficiency of the evidence de novo. See United States v. Mitchell,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Date Filed: 10/20/2010

4 8 4 F.3d 762, 768 (5th Cir. 2007).

We will uphold the jury's verdict if a

r e a s o n a b le trier of fact could conclude from the evidence that the elements of the o ffe n s e were established beyond a reasonable doubt. See Jackson v. Virginia, 4 4 3 U.S. 307, 319 (1979). We review the evidence, both direct and

c ir c u m s t a n t ia l, as well as all reasonable inferences from that evidence, in the lig h t most favorable to the verdict. See United States v. Rose, 587 F.3d 695, 702 (5 t h Cir. 2009), cert. denied, 130 S. Ct. 1915 (2010). Moreover, we determine o n ly whether the jury made a rational decision, not whether its verdict was c o r r e c t on the issue of guilt or innocence. See United States v. Dean, 59 F.3d 1 4 7 9 , 1484 (5th Cir. 1995). W e have set forth a non-exhaustive list of factors to determine whether p o s s e s s io n of a firearm furthers, advances, or helps forward a drug trafficking o ffe n s e , which includes (1) the type of drug activity, (2) the type of firearm, (3) t h e accessibility of the firearm, (4) the proximity of the firearm to drugs or drug p r o fit s , (5) whether the firearm was loaded, (6) whether the firearm was stolen, (7 ) whether the firearm was possessed legally or illegally, and (8) the time and c ir c u m s t a n c e s under which the firearm was found. United States v. CeballosT o r r e s , 218 F.3d 409, 414-15 (5th Cir.), amended in part on other grounds, 226 F .3 d 651 (5th Cir. 2000). Jaimes disputes that his possession of the firearms w a s "in furtherance of" his cocaine trafficking activities. He contends that he did n o t possess the ammunition necessary to operate the firearms listed in the in d ic t m e n t against him, that he did not carry or display the firearms during the c o c a in e transactions, and that he did not barter guns for drugs. Even if all of J a im e s 's contentions are true, they are not enough to establish that the evidence w a s insufficient as a matter of law to convict him of possessing a firearm in fu r t h e r a n c e of a drug trafficking offense. Jaimes admitted that he engaged in a drug trafficking offense when he d is t r ib u t e d powder cocaine. There was testimony regarding the dangerous n a t u r e of drug trafficking, including testimony that one of Jaimes's cocaine 2

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s u p p lie r s had been murdered when someone threw a hand grenade into his car. Jaimes possessed three different firearms--a handgun, a revolver, and an a s s a u lt-s t y le shotgun--all of which were located in Jaimes's bedroom closet. Thus, the firearms were readily accessible to Jaimes. The firearms were located in close proximity to a bag containing 140 grams of cocaine, other cocaine s t a s h e s , cocaine packing materials, a box of .25 caliber auto shells, ammunition fo r a Luger 9mm pistol, a BB gun with ammunition, digital scales, currency, and d r u g ledgers, found in Jaimes's bedroom, bedroom closet, and hall closet. There w a s testimony that drug traffickers commonly possess firearms for purposes of p r o t e c t io n , security, and intimidation and that drug traffickers frequently c o n c e a l their firearms during drug transactions. There was also testimony that la w enforcement officers frequently recover mismatched firearms and a m m u n it io n because of the nature of the drug trafficking industry, which often in v o lv e s bartering guns for drugs. "The fact that a firearm is `unloaded' or `inoperable' does not insulate the d e fe n d a n t from the reach of section 924(c)." United States v. Coburn, 876 F.2d 3 7 2 , 375 (5th Cir. 1989). "As the Supreme Court has recognized, an unloaded fir e a r m is a dangerous weapon capable of provoking a violent response." Id. (c it in g McLaughlin v. United States, 476 U.S. 16, 18 (1986)). T h e jury was free to choose among any reasonable construction of the e v id e n c e . See Mitchell, 484 F.3d at 768. Moreover, "[i]t is not necessary that the e v id e n c e exclude every reasonable hypothesis of innocence or be wholly in c o n s is t e n t with every conclusion except that of guilt." Id. The foregoing e v i d e n c e forms a sufficient basis for a rational juror to conclude that Jaimes p o s s e s s e d firearms in furtherance of cocaine trafficking. See Ceballos-Torres, 2 1 8 F.3d at 415. T h e district court's judgment is AFFIRMED.

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