     Case: 15-50324      Document: 00513438366         Page: 1    Date Filed: 03/24/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50324
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 24, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JULIO M. ALEMAN, also known as Julio Martinez Aleman,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CR-655-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Julio M. Aleman was convicted of possession of a firearm or ammunition
by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Aleman argues that
the evidence was insufficient to support his conviction. Aleman moved for a
judgment of acquittal at the close of the Government’s evidence and presented
no evidence following the denial of his motion for acquittal. He has preserved
his objection to the sufficiency of the evidence supporting his conviction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-50324

United States v. Daniels, 723 F.3d 562, 569 n.13 (5th Cir.), modified in part on
reh’g, 729 F.3d 496 (5th Cir. 2013); United States v. Davis, 380 F.3d 821, 827
(5th Cir. 2004).
      In joint occupancy cases, we have held that constructive possession exists
when there is some evidence to support a plausible inference that the
defendant had knowledge of, and had access to, the items. See United States
v. Meza, 701 F.3d 411, 419 (5th Cir. 2012). Aleman concedes that the evidence
showed that he jointly occupied the residence of his son, that he ran into the
garage of the residence, and that his wallet was found in the cabinet in the
garage. Aleman argues that the testimony that he occupied the guest bedroom
was disallowed as hearsay. Although this is true, a reasonable jury could
plausibly infer that as a regular guest in his son’s home, he slept in the guest
room and constructively possessed the weapon and ammunition in plain view
on the night stand. See id. Similarly, the jury could plausibly infer from the
presence of his wallet, with an expired driver’s license, that Aleman had access
to the cabinet in the garage that contained firearms and ammunition.
Accordingly, there is sufficient evidence for the jury to have found that he
constructively possessed the firearms and ammunition beyond a reasonable
doubt. See United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir.) (en
banc), cert. denied, 135 S. Ct. 170 (2014).
      Aleman argues that his trial counsel was ineffective for failing to
preserve his objection to the sufficiency of the evidence because he failed to
renew the motion for acquittal at the close of all of the evidence. We generally
decline to review ineffective assistance claims on direct appeal. United States
v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014). “We have undertaken to resolve
claims of inadequate representation on direct appeal only in rare cases where
the record allowed us to evaluate fairly the merits of the claim.” United States



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                                 No. 15-50324

v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987). As discussed above, counsel did
not perform deficiently but preserved Aleman’s objection to the sufficiency of
the evidence to support his conviction. See Strickland v. Washington, 466 U.S.
668, 687 (1984).
      Finally, we review the denial of a motion for mistrial for abuse of
discretion. United States v. Zamora, 661 F.3d 200, 211 (5th Cir. 2011). The
district court denied Aleman’s motion for a mistrial and explicitly instructed
the jury that the testimony regarding whether Aleman purchased guns at a
gun show was not proper evidence and that the jury should disregard the
question and the answer given in response. See United States v. Owens, 683
F.3d 93, 99 (5th Cir. 2012). Aleman has not shown that the district court
abused its discretion in denying his motion for a mistrial.
      AFFIRMED.




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