     Case: 09-50400     Document: 00511013966         Page: 1     Date Filed: 01/27/2010




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

                                                  FILED
                                                                         January 27, 2010
                                     No. 09-50400
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

NICHOLAS MOLINA,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:08-CR-217-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Nicholas Molina appeals his conviction after a jury trial of possession of
a firearm in furtherance of a drug trafficking crime, namely, manufacturing
marijuana, in violation of 18 U.S.C. § 924(c)(1)(A). Molina argues that the
Government failed to prove he possessed the firearm in furtherance of the drug
crime.
        Because Molina preserved his challenge to the sufficiency of the evidence,
we review the sufficiency of the evidence de novo. See United States v. Mitchell,

        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 09-50400

484 F.3d 762, 768 (5th Cir. 2007). We view the evidence in the light most
favorable to the verdict to determine whether a rational jury could have found
Molina guilty beyond a reasonable doubt. See id. In weighing the evidence, the
jurors may properly “use their common sense” and “evaluate the facts in light of
their knowledge of the natural tendencies and inclinations of human beings.”
United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (internal quotation marks
and citation omitted).
      Molina contends there was insufficient evidence that the firearm served
to further marijuana manufacturing because its location next to his bed is
consistent with possession for personal protection. Molina also contends that he
grew the plants for personal consumption and thus had no need to protect the
plants. He told officers that he possessed the pistol for “protection from robbers.”
      We have set forth a non-exhaustive list factors to determine whether
possession furthers, advances, or helps forward a drug trafficking offense, which
includes:
      the type of drug activity that is being conducted, accessibility of the
      firearm, the type of the weapon, whether the weapon is stolen, the
      status of the possession (legitimate or illegal), whether the gun is
      loaded, proximity to drugs or drug profits, and the time and
      circumstances under which the gun is found.
United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.), amended in
part, 226 F.3d 651 (5th Cir. 2000). The pistol was located next to the bed where
Molina slept along with a loaded magazine and a holster, which were all readily
accessible and in plain view. The pistol was in the same trailer as several of the
marijuana plants. The officers discovered bagged marijuana and $460 in cash
next to the pistol. In addition, the officers found a stun gun and a shotgun inside
a safe in the bedroom closet and another firearm in the kitchen. The presence
of the other weapons suggests that Molina possessed the pistol as part of a larger
cache of weapons for the purpose of protecting the plants. The officers also




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                                 No. 09-50400

discovered a bullet proof vest inside the closet, which provides further evidence
that the pistol was one of the means Molina used to protect the plants.
      The jury was free to choose among any reasonable construction of the
evidence, United States v. Clark, 577 F.3d 273, 284 (5th Cir.), cert denied 78
U.S.L.W. 3340 (U.S. Dec. 7, 2009) (No. 09-7224), and the foregoing evidence
forms a sufficient basis for a rational juror to conclude that Molina possessed the
pistol to protect the plants and thus possessed the pistol in furtherance of
marijuana manufacturing. See Ceballos-Torres, 218 F.3d at 415.
      The district court’s judgment is AFFIRMED.




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