Case: 12-51293     RESTRICTED Document: 00512472739              Page: 1    Date Filed: 12/17/2013




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT


                                      No. 12-51293
                                    Summary Calendar
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                           December 17, 2013
  UNITED STATES OF AMERICA,
                                                                             Lyle W. Cayce
                                                                                  Clerk
                                                   Plaintiff-Appellee

  v.

  JAVIER IBARRA CARRANZA, also known as Javier Ibarra,

                                                   Defendant-Appellant


                     Appeal from the United States District Court
                        for the Western District of Mississippi
                               USDC No. 1:12-CR-184-2


  Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
  PER CURIAM: *
         A jury convicted Javier Ibarra Carranza of conspiracy to possess with
  intent to distribute more than 100 kilograms of marijuana (21 U.S.C. §§ 841
  and 846), possession with intent to distribute more than 100 kilograms of
  marijuana (§ 841), possession of a firearm in furtherance of a drug trafficking
  crime (18 U.S.C.§ 924(c)(1)(A)), and aiding and abetting the possession of a
  firearm by an illegal alien (18 U.S.C. §§ 922(g)(5), 924(a) and 2). On appeal,


         * 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 R. 47.5, the court has determined that this opinion should not
  be published and is not precedent except under the limited circumstances set forth in 5TH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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                                     No. 12-51293

  Ibarra challenges the sufficiency of the evidence on the two firearms counts,
  arguing that the evidence was insufficient to show that he possessed a firearm.
        Evidence will be deemed sufficient if any rational trier of fact could have
  found that it established guilt beyond a reasonable doubt. Jackson v. Virginia,
  443 U.S. 307, 318 (1979). Although Ibarra moved for a judgment of acquittal
  after the Government rested, he failed to renew the motion at the close of all
  evidence. Accordingly, his sufficiency claim is reviewed for plain error. See
  United States v. Delgado, 672 F.3d 320, 330-32 (5th Cir.) (en banc), cert. denied
  133 S. Ct. 525 (2012). In the context of a sufficiency challenge, to establish
  plain error, the defendant “must demonstrate not just that the government’s
  evidence . . . was insufficient, but that it was obviously insufficient.” Id. at 331.
  We will find the requisite obviousness only if “the record is devoid of evidence
  pointing to guilt or if the evidence is so tenuous that a conviction is shocking.”
  Id. (internal quotation marks and citation omitted).
        Possession of a firearm may be actual or constructive and may be proven
  by circumstantial evidence. United States v. De Leon, 170 F.3d 494, 496 (5th
  Cir. 1999). “Constructive possession need not be exclusive, it may be joint with
  others . . . .” United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992). In
  joint occupancy cases, constructive possession of a firearm may be established
  by evidence that the defendant had access to and knowledge of the firearm.
  See United States v. Anderson, 559 F.3d 348, 353 (5th Cir. 2009); see also
  United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996).
        In the instant case, detectives found a loaded assault rifle inside of a
  pillowcase on a bed in the living room and two loaded handguns underneath
  the same pillow. A rifle case, with a rifle inside, was found in one of the
  bedrooms. Several ammunition magazines and loose rounds were found in
  plain view inside the house. There also was testimony that the house clearly



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                                  No. 12-51293

  appeared to be a “stash house,” with a large quantity of marijuana in plain
  view in one bedroom, and a smaller quantity of cocaine was in plain view in
  the living room. Witnesses also testified that drug traffickers are known to
  keep firearms near their drug supplies. Based on this evidence, we conclude
  that the record was not “devoid of evidence” that would allow a plausible
  inference that Ibarra had knowledge of and access to these firearms. See
  Delgado, 672 F.3d at 331 (internal quotation marks and citation omitted);
  Fields, 72 F.3d at 1212.
        The record does reveal a clerical error in the judgment. The written
  judgment provides that, as to Count Three, Ibarra was convicted of “possession
  of a firearm during a drug transaction.”     Count Three itself is somewhat
  unclear because it appears to conflate the use and carry and possession prongs
  of § 924(c)(1)(A). See United States v. McGilberry, 480 F.3d 326, 329 (5th Cir.
  2007). The judgment should be corrected to properly identify the offense of
  conviction on Count Three.
        Therefore, Ibarra’s convictions are AFFIRMED.             The matter is
  REMANDED for correction of the clerical error pursuant to Federal Rule of
  Criminal Procedure 36.




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