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

                                                 FILED
                                                                         December 21, 2009
                                     No. 08-41125
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SHANNON SHUNKIE HOOPER,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:07-CR-54-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Shannon Shunkie Hooper challenges his convictions of possession of a
firearm in furtherance of a drug trafficking offense; being a felon in possession
of a firearm; and possession with intent to distribute marijuana.                     Hooper
preserved his challenge to the sufficiency of the evidence supporting his
convictions by moving for a judgment of acquittal at the close of the
Government’s case, and because he did not present any evidence after the
Government rested, he did not need to renew this motion to preserve his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41125

sufficiency claims. See United States v. DeLeon, 247 F.3d 593, 596 n.1 (5th Cir.
2001). Accordingly, we review the sufficiency of the evidence to determine
“whether a rational juror could have found the elements of the offense[s] proved
beyond a reasonable doubt.” United States v. Kay, 513 F.3d 432, 452 (5th Cir.
2007) (internal quotation marks and citation omitted), cert. denied, 129 S. Ct. 42
(2008).   The evidence is considered “in the light most favorable to the
government, with all reasonable inferences and credibility choices made in
support of the jury verdict.” Id. (internal quotation marks and citation omitted).
      To establish that Hooper possessed a firearm in furtherance of a drug
trafficking offense, the Government had to present evidence that the firearm
furthered, advanced, or helped forward Hooper’s possession of marijuana with
the intent to distribute it. See United States v. Ceballos-Torres, 218 F.3d 409,
412-14 (5th Cir. 2000). The mere presence of a firearm at the scene of drug
activity is not sufficient. See id. at 414. We consider the type of drug activity,
the accessibility of the firearm, the type of weapon, whether the weapon is
stolen, whether the possession is lawful, whether the weapon is loaded, the
weapon’s proximity to drugs or drug profits, and the time and circumstances
under which the weapon is found. United States v. Charles, 469 F.3d 402, 406
(5th Cir. 2006).
      Testimony established that it is common for individuals who distribute
controlled substances to possess firearms for security and to keep drugs, cash,
and firearms together. The firearm was readily accessible; Hooper’s possession
of it was unlawful because he had a prior felony conviction; the firearm was
loaded; and it was located on top of the box containing marijuana and cash.
Given this evidence, a rational juror could have found that Hooper’s possession
of the firearm furthered, advanced, or helped forward the drug trafficking
offense. See id.
      To prove a felon-in-possession offense, the Government had to establish
that Hooper had been convicted of a felony, he possessed a firearm in or affecting

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interstate commerce, and he knew he possessed the firearm. 18 U.S.C. § 922(g);
United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995). Hooper stipulated to
the felony and interstate commerce elements of the offense. As to whether
Hooper knew he possessed the firearm, evidence of constructive possession is
sufficient, and constructive possession may be shown in joint occupancy cases by
some evidence “supporting at least a plausible inference that the defendant had
knowledge of and access to the weapon or contraband.” Ybarra, 70 F.3d at 365.
Officers testified that a man and a woman lived at the house. The loaded
firearm was found on a shoe box on top of a bedroom dresser; a man’s T-shirt
was on top of the box; and a man’s belt buckle and belt were next to the box. The
bedroom closet contained male clothing, including several items with Hooper’s
name on them; the dresser contained male clothing, a glove bearing the name
“Dre Hooper,” scales, and a warrant notice for Shannon Hooper; there were
several pairs of men’s shoes on the floor in front of the dresser; and the
microwave in the kitchen had the name “Shannon Hooper” written on the
bottom. A rational juror could have found beyond a reasonable doubt that
Hooper resided in the house and that he had knowledge of and access to the
firearm. See Kay, 513 F.3d at 452; see also Ybarra, 70 F.3d at 365.
      To prove possession with intent to distribute drugs, the Government had
to show beyond a reasonable doubt: (1) knowledge, (2) possession, and (3) intent
to distribute the controlled substance. United States v. Infante, 404 F.3d 376,
385 (5th Cir. 2005). The officers smelled a strong odor of marijuana immediately
upon entering the bedroom; found Hooper in a closet adjacent to the bedroom;
found marijuana and a blunt cigar containing marijuana on the nightstand; and
found a shoe box containing 16 individually packaged bags of marijuana and
$190 in cash, with a loaded firearm on top of the box. The presence of Hooper’s
clothing, shoes, and belt next to the shoe box, as well as the marijuana and blunt
cigar on the nightstand, indicate that Hooper had knowledge of and access to the



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marijuana. See Ybarra, 70 F.3d at 365. The marijuana packaging, the loaded
firearm, the scales, and the $190 in cash indicate that Hooper intended to
distribute the marijuana. See United States v. Majors, 328 F.3d 791, 796 (5th
Cir. 2003) (holding a rational jury could have found beyond a reasonable doubt
that defendant intended to distribute a controlled substance based on its
packaging in smaller bags, value, and the proximity of a scale). A rational juror
could have found beyond a reasonable doubt that Hooper possessed the
marijuana with intent to distribute. See Kay, 513 F.3d at 452.
         Hooper asserts that the sentence imposed by the district court was greater
than necessary to accomplish the goals of 18 U.S.C. § 3553(a); that the district
court relied on the factors already taken into account by the Guidelines and did
not analyze mitigating factors; and that the presumption of reasonableness of
his sentence violates United States v. Booker, 543 U.S. 220 (2005). Because
Hooper did not raise these arguments in the district court, review is limited to
plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). To show
plain error, he must show a forfeited error that is clear or obvious and that
affects his substantial rights. See id. If he makes such a showing, we have the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
         The record shows that the district court considered the § 3553(a) factors,
counsel’s arguments, and Hooper’s allocution before imposing the minimum
Guidelines sentence as well as the mandatory minimum sentence for possession
of a firearm by a felon. See Puckett, 129 S. Ct. at 1429. Hooper’s challenge to the
presumption of reasonableness is foreclosed by Rita v. United States, 551 U.S.
338, 346-47 (2007). Because the sentence was within the advisory guidelines
range, it is entitled to a presumption of reasonableness. See id.; United States
v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Hooper has not shown that the
district court’s imposition of this sentence constituted error, much less plain
error.

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      For the foregoing reasons, we AFFIRM Hooper’s convictions and sentence.
However, we REMAND this case pursuant to F ED. R. C RIM. P. 36 for the limited
reason of correcting a clerical error in the judgment on count one, which should
properly read “Possession of a Firearm in Furtherance of a Drug Trafficking
Crime.”




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