                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             July 31, 2009
                              No. 09-10008                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                  D. C. Docket No. 07-00234-CR-J-33TEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

HASSAN KARIM MUHAMMAD,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (July 31, 2009)

Before DUBINA, Chief Judge, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Appellant Hassan Karim Muhammad appeals his conviction for being a
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). Before trial, Muhammad moved to suppress the gun and his

incriminating statements. A magistrate judge held a suppression hearing and

recommended denying the motion. Muhammad did not object, and the district

court accepted the motion. After the government’s case-in-chief at trial,

Muhammad renewed the motion to suppress on the grounds that certain testimony

revealed new evidence. The district court denied the motion, reasoning that the

evidence was not new.

      Muhammad argues on appeal that (1) the district court erred in denying his

motion to suppress, (2) the court erred in denying his motion to renew his motion

to suppress, and (3) the government did not present sufficient evidence of his guilt.

      First, regarding the initial motion to suppress, Muhammad argues that the

officer did not have a reasonable suspicion to stop him. The government responds

that, because Muhammad did not object to the magistrate’s recommendation, he

waived his right to challenge the district court’s denial of his motion to suppress.

      Pursuant to Fed.R.Crim.P. 59(b)(2), which became effective in 2005, a

defendant’s failure to file specific written objections to a magistrate’s

recommendation within ten days after being served with the recommendation, or

by some other date set by the court, constitutes a waiver of his right to appellate



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review.

      Because Muhammad did not file objections to the magistrate judge’s report

and recommendation, we conclude that he waived appellate review of the denial of

his motion to suppress.

      Regarding the motion to renew, Muhammad argues that officer Brown’s trial

testimony that he called in a suspicious person rather than a reckless driver or some

other traffic violation, justified renewed consideration of his motion to suppress

because it demonstrated that Brown did not have a reasonable suspicion that

criminal activity was afoot when he stopped Muhammad. The government notes

that the motion should be construed as a motion to reconsider the denial of the

motion to suppress.

      We review the district court’s denial of a renewed motion to suppress based

on new facts for an abuse of discretion. See United States v. Montos, 421 F.2d

215, 220 (5th Cir. 1970). Ordinarily, when a motion to suppress is denied before

trial, the legal basis of this denial becomes the law of the case for purposes of the

trial, subject to appellate review, and the defendant may not relitigate the

suppression issue at trial. Id. However, “[i]f new facts come to light at trial, the

trial judge in the exercise of his discretion may consider anew the suppression

issue.” Id. In United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004), we



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affirmed the district court’s denial of a defendant’s motion to reopen a suppression

hearing based on new evidence because the “new evidence” was not inconsistent

with the evidence presented at the suppression hearing. Id.

      We conclude from the record here that the district court did not abuse its

discretion in denying the motion to renew. Because the officer testified on both

occasions that he stopped Muhammad because he was suspicious of him, his trial

testimony did not differ from the suppression-hearing evidence and would not have

led to a different outcome on the motion to suppress.

      Finally, regarding sufficiency of the evidence, Muhammad argues that the

evidence presented did not prove beyond a reasonable doubt that Muhammad ever

had knowing possession of the firearm and did not exclude every reasonable

hypothesis except that of guilt.

      We review de novo a claim of insufficient evidence to convict. United

States v. Nolan, 223 F.3d 1311, 1314 (11th Cir. 2000). We view the evidence in

the light most favorable to the government, but “are bound by the jury’s credibility

determinations, and by its rejection of the inferences raised by the defendant.”

United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). To uphold a

conviction, we “need only determine that a reasonable fact-finder could conclude

that the evidence established the defendant’s guilt beyond a reasonable doubt.” Id.



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(internal quotation marks omitted). The evidence need not “exclude every

reasonable hypothesis of innocence or [be] wholly inconsistent with every

conclusion except that of guilt, since a jury is free to choose among reasonable

constructions of the evidence.” Id. (internal quotation marks omitted).

      In order to convict a defendant of possession of a firearm by a convicted

felon, pursuant to § 922(g)(1), the government must prove beyond a reasonable

doubt that (1) the defendant was a convicted felon, (2) the defendant knew that he

was in possession of a firearm, and (3) the firearm affected or was in interstate

commerce. United States v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004). The

second prong, that of possession, may be shown by direct as well as circumstantial

evidence. Id.

      We conclude from the record that sufficient evidence supported

Muhammad’s conviction under § 922(g). Muhammad only challenges whether he

had knowing possession of the firearm. Officer Brown testified that when he was

apprehending Muhammad, he saw Muhammad toss a pair of shorts. When the

officer returned to the spot where Muhammad had tossed the shorts, he saw a

firearm sticking out from inside the shorts. This circumstantial evidence was

sufficient for a reasonable fact-finder to conclude that Muhammad possessed the

firearm while running from the officer. Accordingly, we affirm Muhammad’s



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conviction.

      AFFIRMED.




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