     Case: 09-51005     Document: 00511193688          Page: 1    Date Filed: 08/04/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 4, 2010
                                     No. 09-51005
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTHONY FREEMAN JACKSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:09-CR-106-1


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Anthony Freeman Jackson appeals his conviction following a jury trial for
being a felon in possession of a firearm. Jackson argues that the evidence was
insufficient to support his conviction.
        Jackson argues that the Government failed to prove the “possession”
element of the offense beyond a reasonable doubt because the Government
proved only that he had “handled” a firearm and not that he had “possessed” it.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-51005    Document: 00511193688 Page: 2        Date Filed: 08/04/2010
                                 No. 09-51005

      This court reviews the denial of a motion for acquittal de novo. United
States v. Clayton, 506 F.3d 405, 412 (5th Cir. 2007).         In determining the
sufficiency of the evidence, the court must review the evidence and the
inferences arising therefrom in the light most favorable to the verdict and
determine whether a rational jury could find the defendant guilty beyond a
reasonable doubt.     Id.   “The evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, and the jury is free to choose among reasonable constructions of the
evidence.” Id. (internal quotations and citations omitted).
      To prove the felon in possession charge, the Government had to prove that
Jackson had previously been convicted of a felony, that he had possession of a
firearm, and that the firearm in question had traveled in and/or affected
interstate commerce. 18 U.S.C. § 922(g)(1); United States v. Daugherty, 264 F.3d
513, 515 (5th Cir. 2001). The parties stipulated that Jackson has a prior felony
conviction and that the firearm discovered in his apartment traveled in
interstate commerce.
      Possession of a firearm may be actual or constructive and may be proved
by circumstantial evidence. United States v. McCowan, 469 F.3d 386, 390 (5th
Cir. 2006).   “Actual possession means the defendant knowingly has direct
physical control over a thing at a given time.” See United States v. Munoz, 150
F.3d 401, 416 (5th Cir. 1998).
      The evidence introduced at trial was sufficient to show that Jackson had
actual possession of a firearm.      In particular, the Government presented
testimony that Jackson was carrying a gun as he ran away from police officers;
that he threw it under a bush; that officers recovered the gun from under the
bush; and that his DNA was on the gun and the clip. This testimony establishes
that Jackson had knowing, physical control over a firearm on the night of
April 19th, 2009. See Munoz, 150 F.3d at 416.



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   Case: 09-51005    Document: 00511193688 Page: 3         Date Filed: 08/04/2010
                                 No. 09-51005

      Viewing the evidence as a whole and the credibility findings in the light
most favorable to the verdict, a rational jury could have reasonably concluded
that the evidence established beyond a reasonable doubt that Jackson was a
felon in possession of a firearm, in violation of § 922(g)(1).
      Jackson’s conviction is AFFIRMED.




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