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

                                                                    FILED
                                                                  January 5, 2009
                                 No. 08-50243
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA

                                             Plaintiff-Appellee

v.

TODD RICKS

                                             Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 1:06-CR-206-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Todd Ricks was sentenced to 300 months of imprisonment after a jury
convicted him of possession of a firearm by a convicted felon, a violation of 18
U.S.C. § 922(g), possession of a firearm in furtherance of drug trafficking, a
violation of 18 U.S.C. § 924(c)(1), and maintaining a house used for
manufacturing methamphetamine, a violation of 21 U.S.C. § 856. Ricks appeals
the latter two convictions on grounds of insufficient evidence. He also contends
that trial counsel rendered ineffective assistance by failing to move for acquittal,

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-50243

thereby subjecting his insufficient-evidence claims to review only for a manifest
miscarriage of justice.
      A claim of ineffective counsel is generally not reviewed on direct appeal.
However, in the past, we have considered at this stage a claim of ineffective
assistance of counsel for failing to move for acquittal, reasoning that the record
contains all of the evidence needed to decide whether counsel was ineffective for
failing to file a motion to acquit. See United States v. Rosalez-Orozco, 8 F.3d 198,
199 (5th Cir. 1993). The Government has not suggested any additional evidence
that should have been developed before consideration of this claim in this case
at this stage. To prevail on his ineffective assistance claim, Ricks “must
establish that (1) his counsel’s performance was deficient, and (2) the deficient
performance prejudiced his defense.” Id. (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)).
      Absent a proper motion for acquittal, we review the sufficiency of the
evidence only to determine whether there was a manifest miscarriage of justice,
“that is, whether the record is devoid of evidence pointing to guilt.” United
States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation marks
and citation omitted). Where there has been a proper motion to acquit, we
determine “whether, viewing the evidence and the inferences that may be drawn
from it in the light most favorable to the verdict, a rational jury could have found
the essential elements of the offenses beyond a reasonable doubt.”
Rosalez-Orozco, 8 F.3d at 200 (internal quotation marks and citation omitted).
Accordingly, to show prejudice, Ricks must show “a reasonable probability that
had counsel moved for a judgment of acquittal, the motion would have been
granted on the basis of insufficiency of evidence.” Rosalez-Orozco, 8 F.3d at 199.
If the evidence is deemed sufficient when reviewed as if there had been a proper
motion for acquittal, then Ricks was not prejudiced by the failure to move for
acquittal. See id. at 199-200. Accordingly, to determine whether counsel’s
performance prejudiced Ricks, we “evaluate the sufficiency of the evidence as if

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counsel had moved for judgment of acquittal at the close of the evidence.” Id. at
200. As set forth below, the evidence is sufficient when reviewed under that
standard. Therefore, Ricks was not prejudiced by any deficiencies in counsel’s
performance, and the claim of ineffective counsel fails. See Strickland, 466 U.S.
at 694; Rosalez-Orozco, 8 F.3d at 202. In addition, because the evidence is
sufficient under the “rational juror” standard, a conviction based on that
evidence is not a manifest miscarriage of justice, which is the standard where,
as here, the sufficiency issue has not actually been preserved. See Rosalez-
Orozco, 8 F.3d at 200-02.
      Ricks contends that the Government failed to prove that he possessed a
firearm in furtherance of drug trafficking. Factors relevant to determining
whether possession of a gun “furthers, advances, or helps forward a drug
trafficking offense might include: the type of drug activity that is being
conducted, accessibility of the firearm, the type of the weapon, whether the
weapon is stolen, the status of the possession (legitimate or illegal), whether the
gun is loaded, proximity to drugs or drug profits, and the time and circumstances
under which the gun is found.” United States v. Ceballos-Torres, 218 F.3d 409,
414-15 (2000). “Mere presence” is not enough. Id. The Lorcin .38 caliber pistol
at issue was found loaded in the same room with illicit drugs and paraphernalia.
It was in the same small house where methamphetamine was regularly
manufactured, in a drawer right next to Ricks’s bed. Ricks’s possession of the
gun was unlawful, and he fired or displayed the weapon in the presence of
visitors, scaring at least one of them. Expert testimony indicated that the
weapon was a cheap and inaccurate “crime gun” that was not suitable for
hunting but was suitable for protecting a methamphetamine laboratory.
Government witnesses also testified that weapons are typically found around
methamphetamine labs because they are useful for protecting the lab, the
product, and the profits. These facts form a sufficient basis for any rational juror



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to conclude that Ricks possessed the firearm in furtherance of drug trafficking.
See Ceballos-Torres, 218 F.3d at 411 & n.3, 415.
      Ricks also contends that the evidence was insufficient to prove that he
“maintained” a house for the purpose of manufacturing methamphetamine. He
argues that there was no evidence that he “maintained” the house by exercising
sufficient dominion and control over it. Unrebutted evidence showed that Ricks
made his home in the guest house for six months during which he manufactured
methamphetamine many times. Visitors came to the house to buy and use drugs
and to bring Ricks the ingredients to manufacture methamphetamine.             A
rational jury could conclude that Ricks “maintained” the house because he lived
in it and used it to manufacture, sell and use drugs. See United States v. Onick,
889 F.2d 1425, 1431 (5th Cir. 1989).
      The judgment of the district court is AFFIRMED.




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