                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                APR 29 2004
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 03-2090
                                                      (D.C. No. CR-02-1675 BB)
 JIMMY ALEX BARELA, JR.,                                    (New Mexico)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before TYMKOVICH, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
PAYNE, Chief District Judge.**


       Jimmy Barela, Jr., (the “defendant”) was charged in a one-count indictment with

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The defendant pled not guilty and a trial by jury ensued. At the conclusion of

the government’s case, counsel for the defendant moved for a judgment of acquittal on

the ground that there was insufficient evidence to show that the defendant, who was an


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

        Honorable James H. Payne, Chief District Judge, United States District Court for
       **

the Eastern District of Oklahoma, sitting by designation.
admitted felon, “possessed” the gun in question. The district court denied that motion,

stating, “there is sufficient evidence . . . to submit the case to the jury.” The defendant

called no witnesses on his behalf, and elected to invoke his constitutional right not to

testify. The jury convicted the defendant and the district court thereafter sentenced him to

imprisonment for 120 months, the statutory maximum, as mandated by U.S.S.G. §

5G1.1(a).

       On appeal, counsel raises three issues: (1) insufficiency of evidence to show that

defendant possessed the firearm in question; (2) improper remarks made by the

government counsel in his rebuttal argument to the jury resulting in plain error which

deprived the defendant of his right to a fair trial; and (3) error by the district court in

increasing the defendant’s offense level by four levels pursuant to U.S.S.G. §

2K2.1(b)(5). Finding no reversible error, we affirm.

                           SUFFICIENCY OF THE EVIDENCE

       It was the government’s theory of the case that the defendant was driving a vehicle

with his brother, Lorenzo, as a passenger, when they encountered another vehicle being

driven by Lorina Alvarez, in which Daniel Romero was riding as a passenger; that a few

minutes prior to this meeting the defendant and his brother had been involved in a verbal

argument with Alvarez and Romero in a nearby truck stop; and that on this second

meeting the defendant fired a firearm several times at the vehicle driven by Lorina

Alvarez, which shots pierced the windshield of her vehicle. Based thereon, the defendant


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was charged with possessing a firearm after having a final felony conviction in violation

of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Lorina Alvarez and Daniel Romero were duly

served prior to trial with subpoenas to appear and testify at defendant’s trial. However,

they did not appear at trial. The government apparently knew prior to the start of the

actual trial that the two, for some reason, were not going to appear and testify. (It would

also appear that subsequent to trial, Alvarez and Romero were, after hearing, held in

contempt and punished therefor.) Such being the case, the government presented its case

to the jury without either Alvarez or Romero testifying. At the conclusion thereof,

defense counsel, on motion for judgment of acquittal, argued that there was insufficient

evidence to show that the defendant, who was admittedly a felon, had either “actually,” or

“constructively,” possessed the gun in question. As indicated, that motion was denied,

and the jury, after deliberation, convicted the defendant of the crime charged.

       As stated, Alvarez and Romero, though subpoenaed, did not appear and testify at

trial. Because Alvarez and Romero failed to appear, the government concedes that there is

no direct evidence, as such, which shows that the defendant possessed the weapon in

question, i.e., no “eye witness” nor a “confession.” Hence the government’s position on

this matter is that there was sufficient circumstantial evidence that the defendant did, in

fact, possess the gun to defeat the motion for judgment of acquittal.

       “We review sufficiency of evidence claims by viewing the evidence in the light

most favorable to the jury’s verdict.” United States v. Lang, 81 F.3d 955, 962 (10th Cir.


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1996), citing United States v. Jones, 49 F.3d 628, 632 (10th Cir. 1995). Or, as we said in

United States v. Sanders, 929 F.2d 1466, 1470 (10th Cir. 1991), “a single test applies in

reviewing the sufficiency of the evidence in criminal cases: ‘the evidence – both direct

and circumstantial, together with reasonable inferences to be drawn therefrom – is

sufficient if, when taken in the light most favorable to the government, a reasonable jury

could find the defendant guilty beyond a reasonable doubt,’” citing United States v.

Hooks, 780 F.2d 1526, 1531 (10th Cir. 1986). Using that standard, we agree with the

district court’s conclusion that “there is sufficient evidence . . . to submit the case to the

jury.” A fortiori the evidence is sufficient to support the verdict.

       For background, Ray Campos, a deputy sheriff for Chaves County, New Mexico,

was in his automobile on a call unrelated to this case when he heard “a series of shots

behind me.” They were sufficiently nearby that he thought the shots were possibly

directed at him. Shortly thereafter, a vehicle driven by Alvarez approached the vehicle in

which Campos was seated at a high rate of speed. According to Campos, after engaging

his emergency lights, the car stopped, and he talked to the occupants thereof, whom he

learned were Alvarez and Romero. At that point, according to Campos, Romero told him

the name of the person who had fired shots at the vehicle in which he was riding, and

gave a description of the vehicle from whence the shots were fired. Campos, of course,

was not questioned at trial as to the name of the person given him by Romero who had

fired the shots. However, the prosecutor did ask Campos “whom did you think you


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would be looking for at that time?” Without objection, Campos answered “Jimmy

Barela.” The prosecutor then followed up by asking “and what vehicle did you believe

you would be looking for?”, to which Campos answered “a small white car.” Armed with

this information, Campos began looking for a “small white car” driven by “Jimmy

Barela.” Shortly thereafter, and a relatively short distance from the place where Campos

had stopped the Alvarez vehicle, Campos espied a “small white car.” Campos stopped

that car, which was, in fact, being driven by the defendant with his brother as the

passenger.

       The evidence, all circumstantial in nature, which, in our view, tends to show that

the defendant possessed the firearm in question is summarized as follows:

       (1) the indictment charged defendant with possessing on December 13,
       2001, after he had been convicted of a felony, a “Taurus, Model PT 140
       Millennium, .40 S&W caliber pistol, bearing Serial Number STG 43424”;

       (2) that firearm was purchased from a gun dealer on November 12, 2001, by
       a Ms. Theresa Lucero with whom the defendant was living at the time;

       (3) that most women who buy handguns for their own use purchase small
       guns, such as .22, .380, .32 or a .38 special, and not .40 caliber ones;

       (4) Romero and Alvarez drove up to Deputy Sheriff Campos and Romero
       advised Campos that they “were just shot at,” described the vehicle from
       which the shots had come and named the person who had shot at them.
       Another officer confirmed that there was a hole in the windshield of their
       vehicle;

       (5) based on what Romero had told Campos, the police then began to look
       for a “small white car” being driven by the defendant;

       (6) an experienced police investigator testified that, if the defendant had

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       fired shots out the driver’s window, the spent casings would be on the east
       side of the road on which defendant was driving. A subsequent search of
       the “east side” of that road revealed three spent casings;

       (7) the defendant’s brother, Lorenzo, who was cooperating with the police,
       told the officers that he would take them to the place where the gun had
       been thrown from the car window. He did, and the officers found one live
       round, springs, a butt plate, a magazine and the body of the Taurus .40
       caliber pistol; and

       (8) a gun holster was found on the floor of the vehicle the defendant was
       driving, when arrested, on the driver’s side of the seat.

       Under the described circumstances, the district court did not err in denying the

defendant’s motion for judgment of acquittal and we agree with his observation that

“there is sufficient evidence . . . to submit the case to the jury.” The jury then found,

beyond a reasonable doubt, that the defendant “possessed” a firearm. Our study of the

record convinces us that there is sufficient evidence to support the verdict.

                           IMPROPER CLOSING ARGUMENT

       In his closing argument, defense counsel, inter alia, commented on the fact that the

government in its case did not call as its witnesses either of the alleged “victims,” Alvarez

or Romero; nor did it call Theresa Lucero, who was living with the defendant at that point

in time and had purchased the gun in question from a gun store. ( Ms. Lucero was

apparently present during the entire trial.) It was in this setting that in his final argument

to the jury, the prosecutor spoke as follows:

                    The defense has no burden to prove anything to you
              whatsoever. However, the defense also had the power to
              subpoena witnesses. The defense also had the power to

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              subpoena the victims in this case, as well as the defendant’s
              girlfriend. That never happened. We saw her in the
              courtroom, but not on the witness stand to explain where that
              firearm went after she purchased it. So, please keep that in
              mind. We put on the witnesses that we needed to prove our
              case.

       Counsel did not object at trial to the foregoing statement by the prosecutor.

However, on appeal, counsel argues that the prosecutor’s remarks, when he already knew

that Alvarez and Romero were not going to appear and testify, constituted “plain error”

which dictates a reversal and a new trial. We do not agree. “Plain error” requiring

reversal is warranted only where there is “error” amounting to “plain error” that “affects

substantial rights” and “seriously affects the fairness, integrity or public reputation of

judicial proceedings.” United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001);

United States v. Gauvin, 173F.3d 798, 804 (10th Cir. 1999)(we review a prosecutor’s

remarks during closing argument which were not objected to for plain error and reverse

only to correct particularly egregious errors). We conclude that the prosecutor’s remarks

were prompted by defense counsel’s argument, and most certainly do not constitute “plain

error” that undermines the integrity of the judicial process. United States v. McIntyre,

997 F.2d 687, 707 (10th Cir. 1993).

                                   U.S.S.G. § 2K2.1(b)(5)

       U.S.S.G. § 2K2.1(b)(5) provides that, if a felon found guilty of possessing a

firearm “uses” that firearm “in connection with another felony offense,” his base offense

level should be raised by four levels. The presentence report recommended that

                                             -7-
defendant’s offense level be raised by four levels because the defendant “used” the gun

he “possessed” by firing at the vehicle in which Alvarez and Romero were riding.

Objection to that recommendation was made, and, after hearing, the district court

overruled the objection. The district court did not err in so doing. The record clearly

shows that defendant not only possessed the gun but also “used” it in “connection with

another felony offense” when he fired the gun.

       Judgment affirmed.



                                                  ENTERED FOR THE COURT

                                                  Robert H. McWilliams
                                                  Senior Circuit Judge




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