     Case: 09-50624     Document: 00511084552          Page: 1    Date Filed: 04/19/2010




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

                                                  FILED
                                                                            April 19, 2010
                                     No. 09-50624
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WILLIE ISRAEL NAVARETTE,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:09-CR-11-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Willie Israel Navarette appeals his felon-in-possession-of-a-firearm
conviction under 18 U.S.C. § 922(g)(1). He claims the district court should have
granted his motion for a judgment of acquittal under Federal Rule of Criminal
Procedure 29.
        Under § 922(g)(1), the Government must show: the defendant was
previously convicted of a felony; he possessed a firearm; and, the firearm
traveled in, or affected, interstate commerce. E.g., United States v. Daugherty,

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50624   Document: 00511084552 Page: 2        Date Filed: 04/19/2010
                                No. 09-50624

264 F.3d 513, 515 (5th Cir. 2001). Possession can be actual or constructive and
may be proven by circumstantial evidence. E.g., United States v. De Leon, 170
F.3d 494, 496 (5th Cir. 1999) (citing United States v. Jones, 133 F.3d 358, 362
(5th Cir. 1988). Navarette having properly moved for judgment of acquittal
under Rule 29, our court must consider, de novo, “whether, viewing the evidence
in the light most favorable to the government, a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt”. United
States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998) (citing United States v. Bell,
678 F.2d 547, 549 (5th Cir.1982) (en banc), aff’d, 462 U.S. 356 (1983)).
      Navarette did not present evidence at trial. He stipulated: he had been
convicted previously of a felony; and, the firearms in question had traveled in
or affected interstate commerce. He contends the Government failed to show
he possessed either the .22 or .45 caliber firearm listed in the indictment.
      Officers testified they recovered the .45 caliber pistol from under
Navarette’s mattress, as well as a .45 caliber bullet from inside a box in his
closet; the box also contained marijuana. Navarette admitted the marijuana was
his. When an Officer stated there was no firearm inside that box, Navarette
asked his girlfriend where his gun was. Boxes of bullets found in the same closet
were the same caliber (.22) as the pistol found in Navarette’s father’s closet.
Viewing this evidence in the requisite light most favorable to the Government,
a rational trier of fact could have found, beyond a reasonable doubt, that
Navarette possessed either firearm. See Greer, 137 F.3d at 249. Even assuming
the motion for judgment of acquittal should have been granted for the .22 caliber
firearm, the conviction still stands because a reasonable juror could have
convicted based on the .45 caliber firearm.
      AFFIRMED.




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