                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           NOV 27 2001

                                 TENTH CIRCUIT                        PATRICK FISHER
                                                                               Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 01-6029
 v.                                                 (D.C. No. 00-CR-88-R)
                                                         (W.D. Okla.)
 BRUNO H. OCHOA,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


      Bruno Ochoa appeals his conviction under 18 U.S.C. § 922(g)(1) on the

charge of possessing a firearm after having been convicted of a felony. He also

appeals his sentence enhancement as an armed career criminal. With respect to

his conviction, Mr. Ochoa asserts that the district court erred in overruling his

motion to dismiss for lack of jurisdiction, and alternatively that the evidence was

insufficient to establish he knowingly possessed the firearm. With respect to his


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentence, he contends under Apprendi v. New Jersey, 530 U.S. 466 (2000), that

his punishment should have been limited to ten years’ imprisonment under 18

U.S.C. § 924(a)(2) because the government failed to charge and prove at trial that

he had previously been convicted of three or more qualifying violent or drug

felonies. For the reasons set out below, we affirm Mr. Ochoa’s conviction and

sentence.

                                          I

      Prior to trial, Mr. Ochoa filed a motion to dismiss for lack of jurisdiction,

asserting that 18 U.S.C. § 922(g)(1), the felon-in-possession statute, is

unconstitutional under the Supreme Court’s rulings in Jones v United States, 529

U.S. 848 (2000), United States v Morrison, 529 U.S. 598 (2000), and United

States v Lopez, 514 U.S. 549 (1995). He acknowledges, however, that this

argument is foreclosed by our decision in United States v Dorris, 236 F.3d 582

(10th Cir 2000), which rejected a similar argument. Counsel has included the

argument to preserve it for further review.

                                         II

      Mr. Ochoa next contends the evidence at trial was insufficient to establish

beyond a reasonable doubt that he knowingly possessed the firearm found by

police in the glove compartment of an automobile he owns and was in possession

of at the time of the discovery. Unfortunately for Mr. Ochoa, the determination


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of his knowledge was made by the jury after resolving a credibility dispute

between Mr. Ochoa and a policeman on the scene.

      The evidence reflects that Mr. Ochoa and two other individuals were

dismantling a stolen automobile when they were discovered by police. Mr. Ochoa

ran to his car and started driving off, at which point Officer Sparks blocked Mr.

Ochoa’s vehicle with the police car. Mr. Sparks testified as follows regarding

what occurred next:

      Q. After you blocked him in with your motor vehicle, what happened?

      A. I made eye contact with the defendant. At that time, the defendant
         – after I made eye contact with him, laid down in the seat. I
         then exited my vehicle, went around the back of my vehicle and
         started making verbal comands to the third subject, which was
         standing in between the pickup and the Impala, for him to get
         down on the ground and then verbal commands to the defendant
         to get his hands up.

      Q. Did the defendant respond to your verbal commands?

      A. No, sir.

      Q. Could you still see the defendant as you were exiting the patrol
         unit?

      A. I could see his left shoulder and his hand through the back window
         trying to get into the glove box.

      Q. How long did it take you to get around your patrol vehicle to
         the driver’s side door of the Chevy Impala with the defendant?

      A. Oh, just a couple of seconds.

      ....

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       Q. When you got to the driver’s side of the Chevy Impala, what
          do you do?

       A. I opened the door and the defendant was still trying to get
          into the glove box. I opened the door and grabbed his left
          hand and proceeded to pull him from the vehicle.

       Q. While you’re doing this, were you still ordering him to show
          his hands and get out of the vehicle?

       A. Yes. Yes, sir, I was.

       Q. When you pulled the defendant out of the Chevy Impala,
          what happened?

       A. As I was pulling him out, the glove compartment fell open.
          I pulled him out to the ground, put handcuffs on him, and
          looked back into the car to the open glove box and there was
          a Glock – semiautomatic Glock pistol in the glove box.

Rec., vol 3 at 14-16. On cross-examination, Officer Sparks clarified:

       Q. When you approached the car, you said you saw Mr. Ochoa’s
          left shoulder. He was leaning over in the seat.

       A. Yes sir.

       Q. Do you know whether he was rolling up the window at the
          time you approached his car?

       A. He was trying to get into his glove box. I could clearly see
          that.

       Q. You could clearly see him trying to get into the glove box?

       A. He had his hand on the glove box knob.

Id. at 24.

       Although Mr. Ochoa testified that he had been trying to roll up the window

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of the passenger side of the car rather than get into the glove box, the jury

obviously chose to believe the testimony of Mr. Spears. That testimony was

sufficient to support an inference by the jury that Mr. Ochoa was aware of the

firearm in the glove compartment of his car.

                                          III

      Finally, Mr. Ochoa asserts the district court erred in sentencing him

pursuant to the enhanced penalty provisions of 18 U.S.C. § 924(e) and the

corresponding armed career criminal sentencing guideline. Relying on Apprendi,

Mr. Ochoa argues his punishment should have been limited to ten years because

the government failed to charge him with or prove at trial the three qualifying

violent or drug felonies necessary to enhance the sentence. Once again, counsel

for Mr. Ochoa acknowledges that this argument is foreclosed by our opinion in

Dorris, 236 F. 3d at 586-88, where we followed Almendarez-Torres v. United

States, 523 U.S. 224 (1998)(holding prior felony convictions are mere sentence

enhancements not required to be proven at trial). The Court in Apprendi did not

overrule Almendarez-Torres.

      Accordingly, we AFFIRM Mr. Ochoa’s conviction and sentence.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge


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