                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                              AUGUST 27, 2010
                                No. 09-15518                    JOHN LEY
                            Non-Argument Calendar                 CLERK
                          ________________________

                      D. C. Docket No. 08-60347-CR-DTKH

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

BREYAHN GAVIN,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                (August 27, 2010)

Before DUBINA, Chief Judge, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Appellant Breyahn Gavin appeals his conviction for being a felon in

possession of firearms and challenges both the denial of his motion for judgment of
acquittal after the jury deadlocked at his first trial, and the sufficiency of the

evidence after his conviction at his second trial. For the reasons that follow, we

affirm Gavin’s conviction and the order denying his motion for judgment of

acquittal in the first trial.

                                            I.

       In 2009, an administrative search of Gavin’s apartment by a probation

officer and others, and a second search conducted by authorities with a warrant,

resulted in the seizure of three firearms hidden in the kitchen pantry. As a result, a

grand jury charged Gavin, a convicted felon, with knowingly possessing those

firearms, in violation of 18 U.S.C. § 922(g)(1). Gavin’s first trial ended in a

mistrial, but both before and after that point, he moved for acquittal based on

insufficient evidence. The district court, however, denied his motions.

       After the government rested at his second trial, Gavin again moved for a

judgment of acquittal based on insufficient evidence, which the district court

denied. The defense then rested, without calling any witnesses. The jury returned

a guilty verdict, finding that Gavin knowingly possessed the three firearms in

question. The court sentenced Gavin to 78 months’ imprisonment, followed by

three years’ supervised release.

       Gavin now appeals, arguing that the government failed to prove at his first



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trial that he had constructive possession of the firearms and that, accordingly, the

district court erred by denying his motions for judgment of acquittal. Similarly,

Gavin argues that, in his second trial, the government failed to prove that he had

constructive possession of the firearms because it did not show, beyond a

reasonable doubt, that he knew that the firearms were hidden in the apartment.

                                          A.

      “We review de novo a district court’s denial of [a motion for] judgment of

acquittal on sufficiency of evidence grounds.” United States v. Browne, 505 F.3d

1229, 1253 (11th Cir. 2007) cert. denied, 128 S. Ct. 2962 (2008). “In reviewing a

sufficiency of the evidence challenge, we consider the evidence in the light most

favorable to the Government, drawing all reasonable inferences and credibility

choices in the Government’s favor. If a reasonable jury could conclude that the

evidence establishes guilt beyond a reasonable doubt, we will affirm the verdict.”

Id. (citations omitted).

      To convict a defendant under 18 U.S.C. § 922(g)(1), the government must

prove beyond a reasonable doubt that: (1) the defendant is a convicted felon; (2) he

knowingly possessed a firearm; and (3) the firearm affected or was in interstate

commerce. See 18 U.S.C. § 922(g)(1); United States v. Wright, 392 F.3d 1269,




                                           3
1273 (11th Cir. 2004).1 The government can show that the defendant had actual or

constructive possession of the firearm to satisfy the second prong. United States v.

Sweeting, 933 F.2d 962, 965 (11th Cir. 1991).

       “A defendant has constructive possession if he exercises ownership,

dominion, or control over the firearm. A defendant also has constructive

possession if he has the power and intention to exercise dominion or control. The

defendant may exercise that dominion and control either directly or through

others.” United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir. 2004) (citations

omitted). “In essence, constructive possession is the ability to reduce an object to

actual possession.” United States v. Martinez, 588 F.2d 495, 498 (5th Cir. 1979),

abrogation of other point of law recognized by United States v. Moya, 74 F.3d

1117 (11th Cir. 1996). “The firearm need not be on or near the defendant’s person

in order to amount to knowing possession.” Wright, 392 F.3d at 1273 (citing

United States v. Winchester, 916 F.2d 601, 603-04 (11th Cir. 1990) (holding that

firearm found behind couch when defendant was not home sufficient for

conviction under 18 U.S.C. § 922(g)).

       We have concluded that a constructive possession of contraband in an

apartment is established when a defendant is listed on the lease as a resident and


       1
        At both trials, Gavin stipulated to the first and third elements and does not challenge either
on appeal.

                                                  4
his name is on the rent receipts. United States v. Morales, 868 F.2d 1562, 1573

(11th Cir. 1989). In addition, constructive possession can be established by

showing that a defendant had “dominion or control over the premises” in which a

firearm was located. See United States v. Derose, 74 F.3d 1177, 1185 (11th Cir.

1996). “However, a defendant’s mere presence in the area of contraband or

awareness of its location is not sufficient to establish possession.” United States v.

Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006) (internal quotation marks

omitted).

      Viewed in the light most favorable to the government, we conclude from the

record that the evidence at Gavin’s first and second trials showed that the

apartment was Gavin’s residence and that he therefore had constructive possession

of the firearms concealed in the pantry. Just the day before officers conducted the

administrative search, Gavin reported to his probation officer, as he had done in

prior months, that the apartment was still his residence. Although he also

announced that he was looking for a new place to live, he notably did not indicate

that he had already moved. Evidence also showed that, as recently as two weeks

before the administrative search, he was in the apartment early in the morning

when his probation officer made a home visit. Moreover, the jury could have

reasonably inferred from Gavin’s “slump”—upon hearing that a firearm had been



                                           5
discovered—that he had previous knowledge of firearms concealed in the pantry.

We conclude that this evidence is sufficient to support a jury determination that

Gavin had constructive possession of the firearms in the apartment. See Morales,

868 F.2d at 1573.

      Because credibility determinations rest with a jury, the jury could have

disbelieved testimony by Gavin’s sister—during the first trial—that he was living

with her. In any event, even if Gavin had been living with his sister for a period of

weeks prior to his arrest, he still had unrestricted access to the apartment and, in

contradiction to his sister’s testimony that all of his clothes were at her house,

clothes belonging to him were found in the bedroom he designated as his own. A

jury could therefore reasonably infer that, while he may have been living

elsewhere, Gavin nevertheless exercised control over the residence and therefore

maintained constructive possession of the firearms.

      For the above-stated reasons, we affirm Gavin’s conviction and the district

court’s order denying Gavin’s motion for judgment of acquittal in the first trial.

      AFFIRMED.




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