     Case: 17-30276      Document: 00514468775         Page: 1    Date Filed: 05/11/2018




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

                                    No. 17-30276                                FILED
                                  Summary Calendar                          May 11, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAMION HAMILTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 6:16-CR-2-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Damion Hamilton appeals his conviction of felony possession of a firearm
and ammunition. He contends that the evidence was insufficient to support
his conviction because it did not establish that he knowingly possessed the
firearm and ammunition that were in a locked gun safe located in the vehicle
that he was operating at the time of his arrest. He also argues that the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-30276    Document: 00514468775     Page: 2   Date Filed: 05/11/2018


                                 No. 17-30276

prosecutor improperly commented on his failure to call his girlfriend as a
witness during his trial.
      Our review of the preserved sufficiency of the evidence issue is de novo.
See United States v. Diaz, 637 F.3d 592, 602 (5th Cir. 2011).         Hamilton
admitted prior to his arrest that he kept a firearm because of the car he drove.
At the time of that admission and his arrest, he was driving the same black
Cadillac, and DNA and fingerprint evidence on the firearm and ammunition
that were found in a gun safe in the Cadillac indicated that Hamilton had
actually possessed those items. Although there was no evidence introduced at
trial indicating that Hamilton could unlock the gun safe and the Cadillac and
firearm were registered to Hamilton’s girlfriend, the jury could have plausibly
inferred from the evidence that he had constructive possession of the firearm
and ammunition. See United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012);
cf. United States v. Hinojosa, 349 F.3d 200, 202-04 (5th Cir. 2003); United
States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994).
      “Improper comments by a prosecutor may constitute reversible error
where the defendant’s right to a fair trial is substantially affected.” United
States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir. 1990). In this case,
any prejudice resulting from the comments in question “were neutralized by
the court’s [curative] instruction” after the comments were made and by the
court’s reminder in the jury instructions that the Government had the burden
of proof. Id. at 1238. Accordingly, Hamilton’s conviction is AFFIRMED.




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