     Case: 16-50442      Document: 00513927248         Page: 1    Date Filed: 03/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-50442                                  FILED
                                  Summary Calendar                          March 27, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ERNESTO FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:15-CR-264-1


Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Jose Ernesto Flores appeals his conviction and sentence for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), on the ground
that the evidence of his possession was insufficient for the jury to render a
guilty verdict. Even though he acknowledges that the amended judgment
correctly reflects the jury’s verdict, he also argues that this court should vacate


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50442

the sentence and remand for resentencing because the initial judgment
erroneously stated that he pleaded guilty.
      As Flores preserved his sufficiency argument through his Rule 29
motions at trial, our review is de novo. United States v. Davis, 735 F.3d 194,
198 (5th Cir. 2013). When considering the sufficiency of the evidence, this
court evaluates all evidence, whether circumstantial or direct, “in the light
most favorable to the Government with all reasonable inferences to be made in
support of the jury’s verdict.” United States v. Terrell, 700 F.3d 755, 760 (5th
Cir. 2012) (internal quotation omitted).     The jury may choose among any
reasonable constructions of the evidence. United States v. Mitchell, 484 F.3d
762, 768 (5th Cir. 2007). We will uphold the verdict if any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt. See United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014)
(en banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). To support a
conviction for being a felon in possession of a firearm, the Government must
prove beyond a reasonable doubt that (1) the defendant previously had been
convicted of a felony; (2) he knowingly possessed a firearm; and (3) the firearm
traveled in or affected interstate commerce. United States v. Anderson, 559
F.3d 348, 353 (5th Cir. 2009). Possession can be actual or constructive, sole or
joint. United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012).
      The evidence, when viewed in a light most favorable to the Government,
was sufficient for the jury to find Flores guilty under a theory of constructive,
joint possession of the firearms. The evidence revolves around a breaking and
entering into a home. When the homeowner confronted two men outside his
back door, they were holding a pillowcase containing firearms and two small
black cases containing firearms. The men dropped the items and fled. Given
the evidence presented, including some inconsistent and reasonably



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                                  No. 16-50442

implausible defense testimony, the jury rationally could have found the
homeowner credible and rejected Flores’s assertion that he did not assist with
the breaking and entering. United States v. Villarreal, 324 F.3d 319, 325 (5th
Cir. 2003); United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999) (“[A]ll
credibility determinations are made in the light most favorable to the
verdict.”). Notably, the homeowner testified that he was only gone from his
house for 30 minutes, which flatly contradicts the hour and a half timeline set
forth in defense testimony.     In rejecting the defense’s timeline, the jury
rationally could have found the defense testimony to be implausible, such as
the testimony that Flores’s brother burglarized the home alone, left it
unattended and with all its property intact for an hour and half, and thereafter
returned with Flores who helped carry a few containers that Flores knew
nothing about. Based on the evidence presented, the jury rationally could have
inferred that the burglars stashed firearms into containers for transport before
leaving the house. Therefore, a jury’s reasonable finding that Flores assisted
with the breaking and entering establishes more than a plausible inference
that Flores had knowledge of and access to the firearms charged in the
indictment. United States v. McCowan, 469 F.3d 386, 390 (5th Cir. 2006). This
interpretation of the evidence, having “link[ed]” Flores to the firearms, suffices
to establish joint, constructive possession. Anderson, 559 F.3d at 353.
      Lastly, Flores’s argument for resentencing is without merit.           The
properly noticed appeal notwithstanding, the district court appropriately
exercised its authority to correct a clerical error in the initial judgment under
Rule 36 of the Federal Rules of Criminal Procedure. Ross v. Marshall, 426 F.3d
745, 751 (5th Cir. 2005); FED. R. CRIM. P. 36. Given that it is undisputed that
Flores did not plead guilty, “the district court's amendment amounts to a




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                                 No. 16-50442

clerical revision that did not substantively alter [the] sentence.” United States
v. Spencer, 513 F.3d 490, 491 (5th Cir. 2008).
      AFFIRMED.




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