     Case: 17-50133      Document: 00514273614         Page: 1    Date Filed: 12/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 17-50133                                    FILED
                                  Summary Calendar                          December 14, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

MARK GOMEZ GARZA, JR.,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 7:16-CR-236-2




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

       Mark Garza, Jr., appeals his conviction under 18 U.S.C. § 922(g)(1) for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-50133    Document: 00514273614     Page: 2   Date Filed: 12/14/2017


                                 No. 17-50133

unlawfully possessing a firearm after having been convicted of a felony. The
district court sentenced him to ten years of imprisonment and three years of
supervised release.

      Garza challenges the sufficiency of the evidence that he constructively
possessed a firearm. We review the denial of his motion for judgment of acquit-
tal de novo, asking “‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” United States v.
Zamora, 661 F.3d 200, 209 (5th Cir. 2011) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).

      Officers encountered Garza and two other men inside a house where
officers also found three loaded firearms. The government presented testi-
mony that Garza admitted that he was a prospective member of the Texas
Syndicate gang. One of the other men was a lieutenant in the same gang.
Garza stated that the men were staying at the house together for protection
because one of them had been attacked recently by a rival gang. Garza stated
that he stayed in the middle bedroom, where two loaded handguns were found
under the bed—one on each side. Thus, there was sufficient evidence that
Garza intended to exercise control over one of the loaded firearms found under
each side of the bed in his room. See id. at 209; see also Henderson v. United
States, 135 S. Ct. 1780, 1784 (2015).

      Garza contends that the district court erred in refusing to instruct the
jury that mere presence in an area where a crime is being committed is insuffi-
cient to establish guilt. We review for an abuse of discretion. United States v.
Simkanin, 420 F.3d 397, 410 (5th Cir. 2005). “[A]n instruction requiring a
finding of intent to exercise dominion or control over the contraband, as here,
obviates the need for a separate mere presence instruction.” United States v.


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                               No. 17-50133

Prudhome, 13 F.3d 147, 150 (5th Cir. 1994). Thus, “the instructions actually
given fairly and adequately cover” the issue of constructive possession. Sim-
kanin, 420 F.3d at 410.

     AFFIRMED.




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