                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                         DECEMBER 29, 2006
                            No. 06-11650                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                   D. C. Docket No. 05-00012-CR-D-S

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                 versus

CHARLIE MAYES,

                                                      Defendant-Appellant.


                      ________________________

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


                          (December 29, 2006)


Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Charlie Mayes appeals his conviction and 60-month sentence for being a

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

asserts the following grounds for appeal: (1) the district court erred in denying his

motion for a judgment of acquittal because the evidence was not sufficient to prove

that he knowingly possessed a firearm; and (2) the district court erred in denying

his request for a downward departure based on his mental condition; or, in the

alternative, the district court should have sentenced him at the low end of the

Guidelines range. We conclude there was sufficient evidence to sustain his

conviction, we do not have jurisdiction to review the denial of the downward

departure, and his sentence is reasonable.

                                  I. DISCUSSION

A. Sufficiency of Evidence

      Mayes contends the evidence was not sufficient to establish he knowingly

possessed a firearm. He asserts there was no direct evidence that he knew the gun

was in the truck, but there was direct evidence the gun belonged to his mother, who

put the gun in the truck so it would not be in the house when Mayes spent the night

there. He contends the only evidence connecting him to the gun was that it was

found under the seat of the vehicle he was driving.

      We review sufficiency-of-the-evidence challenges de novo, “viewing the



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evidence in the light most favorable to the government and drawing all reasonable

inferences from the evidence in favor and in support of the jury verdict.” United

States v. Smith, 231 F.3d 800, 806 (11th Cir. 2000). The jury is free to choose

between or among the reasonable conclusions to be drawn from the evidence

presented at trial. United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir. 1984).

We cannot reverse a conviction for insufficiency of evidence unless we conclude

that no reasonable factfinder could find proof of guilt beyond a reasonable doubt.

United States v. Jones, 913 F.2d 1552, 1557 (11th Cir. 1990).

      “To establish a violation of § 922(g)(1), the government must prove beyond

a reasonable doubt three elements: (1) that the defendant was a convicted felon,

(2) that the defendant was in knowing possession of a firearm, and (3) that the

firearm was in or affecting interstate commerce.” United States v. Deleveaux, 205

F.3d 1292, 1296-97 (11th Cir. 2000). “Possession, in the context of § 922(g)(1),

requires that the defendant knowingly possess the firearm, and may be proven

either by showing that the defendant actually possessed the firearm, or by showing

that he constructively possessed the firearm.” United States v. Gonzalez, 71 F.3d

819, 834 (11th Cir. 1996) (citations omitted). “For a person to have constructive

possession over a firearm, the person must have both the intent and the power to

exercise dominion and control over the firearm. As such, a defendant must, in fact,



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know of the firearm’s existence in order to exercise dominion and control over it.”

Id. (quotations and citations omitted).

      Here, the only element at issue is whether Mayes knowingly possessed the

firearm. The evidence showed a gun was found in a truck driven by Mayes. While

inspecting the truck, Officer Spivey saw a gun in plain view, partially underneath

the driver’s seat. Officer Spivey had previously seen Mayes drive the same truck

two or three times, and Mayes had his own set of keys to the truck. Additionally,

Mayes’ former parole officer, Tommy Scarborough, saw the truck at Mayes’ home

in 1997, and Mayes had driven the truck to Scarborough’s office. Joseph Evans

testified that Mayes had the truck serviced at his shop. Mayes had also received

six traffic citations while driving the truck.

      Although there was other evidence presented permitting the conclusion that

Mayes did not normally drive the truck, did not know his mother owned the gun,

and did not know that the gun had been placed in the truck before he drove it, a

reasonable juror could have also determined Mayes knew the gun was in the truck

that he regularly drove. The jury had the opportunity to view first-hand the

individuals presenting the evidence and weigh their credibility. See Sanchez, 722

F.2d at 1505. Because a reasonable factfinder, based on the evidence presented at

a trial, could find proof Mayes knowingly possessed the gun beyond a reasonable



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doubt, the district court did not err in denying Mayes’ motion for a judgment of

acquittal. See 18 U.S.C. § 922(g)(1); Jones, 913 F.2d at 1557.

B. Sentence

      Mayes also contends the district court failed to consider his mental condition

of schizophrenia in arriving at his sentence. He asserts the district court should

have granted him a downward departure, or, in the alternative, sentenced him to the

low end of the Guidelines range.

      If the defendant requests a downward departure from the Guidelines range,

and the district court refuses to grant the departure, we have no jurisdiction to

review the district court’s decision “unless the district court incorrectly believed

that it lacked the statutory authority to depart from the guideline range.” United

States v. Norris, 452 F.3d 1275, 1282 (11th Cir. 2006). The district court

recognized it had the authority to grant Mayes a downward departure in sentencing

him due to his mental illness, but decided not to do so. Thus, we cannot review

that decision.

      Following the Supreme Court’s decision in United States v. Booker, 125 S.

Ct. 738 (2005), we review sentences under the advisory Guidelines for

reasonableness. Id. at 765. The district court must first correctly calculate the

defendant's Guidelines range, then, using the 18 U.S.C. § 3553(a) sentencing



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factors, the court can impose a more severe or more lenient sentence, as long as it

is reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).

To the extent Mayes argues his sentence was unreasonable because it was in the

upper portion of the Guidelines range, the court correctly determined the

Guidelines range and considered the § 3553(a) factors. We conclude his sentence

is reasonable.

                                II. CONCLUSION

      Sufficient evidence supports Mayes’ conviction for being a felon in

possession of a firearm. We do not have jurisdiction to review the denial of a

Mayes’ request for a downward departure, but we conclude his sentence is

reasonable.

      AFFIRMED IN PART, DISMISSED IN PART.




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