                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 29, 2011
                 UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 10-2018
 v.                                           (D.C. No. 1:09-CR-00871-JCH-1)
                                                     (D. New Mexico)
 JOHN MICHAEL LERMA,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before O’BRIEN, SEYMOUR, and EBEL, Circuit Judges.


      Mr. Lerma appeals his conviction for possessing a firearm and ammunition

as a former felon. The underlying indictment charged Mr. Lerma with being a

convicted felon who possessed a .357 magnum revolver and five rounds of

ammunition on February 24, 2009 in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). The jury found him guilty and the district court sentenced him to 92

months’ imprisonment. On appeal, Mr. Lerma argues the evidence at trial was


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with the terms and conditions of Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
insufficient to support his conviction. We affirm.

      At trial, Albuquerque Police Officer Jarrod Pelot testified that at

approximately 1:00 a.m. on February 24, 2009, he attempted to stop a vehicle

because he thought the driver might be drunk. Mr. Lerma was the driver. Rather

than pull over, Mr. Lerma made several turns and then came to a stop on a dead

end street. Mr. Lerma and the vehicle’s passenger exited the vehicle. The

passenger fled over a nearby cinderblock wall. Mr. Lerma refused Officer Pelot’s

order to lie down and to show his hands. Instead, he placed his hands on the front

of his pants, then he ran toward the nearby wall. Officer Pelot saw two objects in

Mr. Lerma’s hands. According to Officer Pelot’s testimony, Mr. Lerma threw

both of the objects over the wall and then attempted to climb it, at which point the

officer grabbed Mr. Lerma, pulled him down, and took him into custody.

      Once backup arrived, Officer Pelot shined his flashlight over the wall. He

saw a set of keys and a gun “directly in front of where Mr. Lerma attempted to go

over the wall.” Rec., vol. III at 62. The gun was a .357 magnum revolver, loaded

with five rounds of ammunition. The keys were to the vehicle Mr. Lerma was

driving. When asked, Mr. Lerma said the passenger was James Padilla.

      Mr. Marcos Lopez testified for the defense that he had purchased the gun

and then sold it to Mr. Chris Perea. The sale took place at the home of Mr.

Lopez’s cousin, whose sister is Mr. Lerma’s girlfriend. Mr. Perea testified that

Mr. Lerma, who was there at the time of the sale, was driving him home when the

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police stopped them. Mr. Perea testified he “just freaked out and jumped out and

ran.” Rec., vol. III at 187. Mr. Perea testified he had the gun in the waistband of

his jeans, and, when he jumped over the wall, the gun fell out.

      Mr. Lerma contends the government’s evidence was insufficient to sustain

his conviction. We review sufficiency-of-the-evidence claims de novo, viewing

the evidence in the light most favorable to the government. United States v.

Dunmire, 403 F.3d 722, 724 (10th Cir. 2005). We do not reweigh the evidence or

second guess the factfinder’s credibility determinations. United States v.

Johnson, 57 F.3d 968, 971 (10th Cir. 1995). Rather, we inquire into “whether a

reasonable jury could find guilt beyond a reasonable doubt, based on the direct

and circumstantial evidence, together with the reasonable inferences to be drawn

therefrom.” United States v. Smith, 133 F.3d 737, 741-42 (10th Cir. 1997).

      The “felon-in-possession” statute prohibits any person who has been

convicted of a crime punishable by imprisonment for a term exceeding one year

from possessing “in or affecting commerce, any firearm or ammunition.” 18

U.S.C. § 922(g)(1). To obtain a conviction under the statute, the government

must prove beyond a reasonable doubt that: “(1) the defendant was convicted of a

felony; (2) the defendant thereafter knowingly possessed a firearm [or

ammunition]; and (3) the possession was in or affecting interstate commerce.”

United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004) (citing United

States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996)). Mr. Lerma argues the

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government failed to establish the second element, that is, he knowingly

possessed the .357 revolver and attendant ammunition. 1 In particular, Mr. Lerma

asserts “it is undisputed there is no evidence [he] ever actually or constructively

possessed the . . . revolver.” Aplt. Br. at 13.

        Viewing the evidence in the light most favorable to the government, we

readily conclude the evidence was sufficient to prove beyond a reasonable doubt

Mr. Lerma knowingly possessed the loaded revolver. At trial, Officer Pelot

testified that Mr. Lerma refused to keep his hands visible, that he had two objects

in his hands, and that he threw those objects over the wall before attempting to

climb it. Officer Pelot found two objects – keys to the vehicle Mr. Lerma was

driving and the loaded revolver – over the wall in front of where Mr. Lerma

attempted to climb it. This evidence was sufficient to permit the jury to conclude

that Mr. Lerma actually possessed the objects he threw over the wall and that

those objects were the keys and loaded revolver Officer Pelot found on the other

side.

        In resisting this conclusion, Mr. Lerma cites Mr. Perea’s testimony as

“direct, credible evidence” that he, Mr. Lerma, never possessed the revolver, and

that Mr. Perea “had placed it in his waistband, only to have it fall out of the leg of

his pants when he jumped over the cinder block wall while running from Officer


        1
        Mr. Lerma does not dispute that the government established the first and
third elements, both of which he stipulated to at trial.

                                          -4-
Pelot.” Aplt. Br. at 14. We are not persuaded this requires reversal of Mr.

Lerma’s conviction. To be sure, it would have been physically impossible for Mr.

Lerma and Mr. Perea both to have possessed the revolver during their respective

attempts to scale the wall. Thus, had the jury credited Mr. Perea’s testimony over

Officer Pelot’s, it would have been required to return a verdict of not guilty. The

fact that the jury returned a verdict of guilt simply indicates it believed Officer

Pelot’s testimony over Mr. Perea’s, a credibility determination we will not second

guess on appeal. See Johnson, 57 F.3d at 971.

      Accordingly, we AFFIRM Mr. Lerma’s conviction.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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