                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 18 2011

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10188

              Plaintiff - Appellee,              D.C. No. 1:07-cr-00075-1

  v.
                                                 MEMORANDUM *
NATHANIEL DIAZ PUNZALAN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Guam
            Frances Tydingco-Gatewood, Chief District Judge, Presiding

                      Argued and Submitted October 13, 2010
                                Honolulu, Hawaii

Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.

       Although certainly not overwhelming, the evidence against Nathaniel Punzalan

(“Punzalan”) was sufficient to support his jury trial conviction under 18 U.S.C.

§ 922(g) for being a felon in possession of a firearm. See Jackson v. Virginia, 443

U.S. 307, 319 (1979); United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010)



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(en banc).    The district court’s within-Guidelines sentence, reflecting proper

consideration and weighing of the 18 U.S.C. § 3553(a) sentencing factors, was neither

procedurally nor substantively unreasonable. We therefore affirm.

      To sustain a conviction under § 922(g), the government must prove the

defendant’s actual or constructive possession of the firearm and not merely his or her

presence in its vicinity. See Nevils, 598 F.3d at 1167; United States v. Bernard, 48

F.3d 427, 430 (9th Cir. 1995); United States v. Chambers, 918 F.2d 1455, 1459 (9th

Cir. 1990). Constructive possession can be established with circumstantial evidence

alone, United States v. Thongsy, 577 F.3d 1036, 1041 (9th Cir. 2009), and may

properly be inferred from a defendant’s exclusive control over the premises where

contraband is found, United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985).

Under these standards, a rational jury could have found Punzalan guilty of violating

§ 922(g).

      Although the district court initially miscalculated the range of potential

sentences, it corrected this error and sentenced Punzalan based on the correct

Guidelines range given his total offense level and criminal history category. The

district court also treated the Guidelines as advisory, allowed Punzalan to present his

argument for a reduced sentence, and considered the § 3553(a) factors before

imposing an individualized sentence at the high end of the Guidelines range, which


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it adequately explained. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.

2008) (en banc). Furthermore, Punzalan fails to carry his burden of persuasion in

showing how any alleged procedural error resulted in prejudice affecting his

substantial rights. See United States v. Olano, 507 U.S. 725, 734 (1993).

      Punzalan’s sentence was also substantively reasonable, reflecting consideration

and weighing of the § 3553(a) factors, including the seriousness of the offense,

deterrence, public safety, and Punzalan’s rehabilitation, as well as his personal

background and criminal history. The district court expressed particular concern for

Punzalan’s repeated recidivism at such a young age and his need for counseling in a

controlled setting.   Although not presumptively reasonable, a within-Guidelines

sentence “ordinarily needs little explanation,” Carty, 520 F.3d at 992, and this Court

will not substitute its judgment for that of a sentencing judge “‘in a superior position

to find facts and judge their import under § 3553(a) in the individual case,’” United

States v. Cherer, 513 F.3d 1150, 1160 (9th Cir. 2008) (quoting Gall v. United States,

552 U.S. 38, 51 (2007)). The sentence was also within discretionary bounds and

sufficiently individualized.

      AFFIRMED.




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