                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT

                                        No. 99-50554
                                      Summary Calendar

UNITED STATES OF AMERICA,
                                                                              Plaintiff-Appellee,

                                               versus
PAUL HERRERA GUTIERREZ,
                                                                          Defendant-Appellant.


                      Appeal from the United States District Court
                          for the Western District of Texas
                         USDC No. SA-98-CR-335-ALL-OG
                                        January 31, 2000
Before POLITZ, SMITH, and WIENER, Circuit Judges
PER CURIAM:*
       Paul Herrera Gutierrez appeals his conviction for being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). He contends that the evidence
was insufficient to show that he possessed a firearm. The standard of review in
assessing a challenge to the sufficiency of the evidence in a criminal case is
whether a “reasonable trier of fact could have found that the evidence established
guilt beyond a reasonable doubt.”1 In evaluating the sufficiency of the evidence,
we view all evidence and all reasonable inferences drawn therefrom in the light



        *
         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff’d on other
grounds, 462 U.S. 356 (1983); see Jackson v. Virginia, 443 U.S. 307 (1979).
most favorable to the government.2
        To sustain a conviction for possession of a firearm by a felon under § 922(g),
the government must prove beyond a reasonable doubt that “(1) the defendant had
a previous felony conviction, (2) that the defendant possessed a firearm, and (3) the
firearm had travelled in or affected interstate commerce.”3 The only element at
issue in this case is the second.
        Possession of a firearm may be actual or constructive.4 “Constructive
possession is the exercise of, or the power or right to exercise dominion and control
over the item at issue[.]”5 Constructive possession may be proven with
circumstantial evidence.6          The court applies “a common sense, fact-specific
approach” to a determination whether constructive possession exists. 7
        The gun at issue was found underneath a blue cap. Before the gun was
found, Gutierrez stated that the cap was his. Gutierrez contends that he would not
have claimed ownership of the cap if he had known about the gun. “In light of this
equivocal evidence, [Gutierrez contends], a reasonable jury would ‘necessarily
entertain a reasonable doubt’ as to whether Gutierrez constructively possessed the
gun.”
        We are not persuaded. The standard of review requires that all reasonable
inferences drawn from the evidence be viewed in the light most favorable to the




        2
         Glasser v. United States, 315 U.S. 60 (1942).
        3
         United States v. Wright, 24 F.3d 734 (5th Cir. 1994).
        4
         United States v. Speer, 30 F.3d 605 (5th Cir. 1994).
        5
         Id. (internal quotation and citations omitted).
        6
         United States v. McKnight, 953 F.2d 898 (5th Cir. 1992).
        7
         United States v. Wright, 24 F.3d 732, 734 (5th Cir. 1994).

                                                  2
government.8 Gutierrez’ statement disclaiming ownership of the gun was not the
only evidence relevant to constructive possession. The cap was immediately beside
Gutierrez before he got up from the porch and it was not within reach of any of the
others there.
       Gutierrez contends that § 922(g) unconstitutionally extends Federal control
to non-commercial firearms possession.9 He concedes that this issue has been
resolved against his position but states that he wishes to preserve the question for
review by the Supreme Court.10              We must follow our present controlling
precedents.
       The conviction and sentence are AFFIRMED.




       8
        Glasser, 315 U.S. at 80.
       9
        Citing United States v. Lopez, 514 U.S. 549 (1995).
      10
        See United States v. DeLeon, 170 F.3d 494 (5th Cir.), cert. denied, 120 S.Ct. 156 (1999),
and United States v. Rawls, 85 F.3d 240 (5th Cir. 1996).

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