                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 19 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-10372

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00015-MCE

  v.
                                                 MEMORANDUM*
KEITH LAMONT JENKINS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                       Argued and Submitted July 12, 2010
                            San Francisco, California

Before: FERNANDEZ, W. FLETCHER, and TALLMAN, Circuit Judges.

       Defendant-Appellant Keith Jenkins timely appeals his jury trial conviction

for one count of Felon in Possession of a Firearm pursuant to 18 U.S.C. §

922(g)(1). Because the parties are familiar with the facts and procedural history of



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
this case, we will discuss them only as necessary to explain our decision. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Jenkins first argues that the evidence at trial was insufficient to support his

conviction. Where, as here, the defendant moved for a judgment of acquittal

pursuant to Federal Rule of Criminal Procedure 29, we review the sufficiency of

the evidence de novo. United States v. Esquivel-Ortega, 484 F.3d 1221, 1224 (9th

Cir. 2007). We must “construe the evidence in the light most favorable” to the

government, and then determine whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United

States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (quoting Jackson v.

Virginia, 443 U.S. 307, 318–19 (1979) (emphasis in original)).

      Here, the gun at issue was found on the ground directly beneath the driver’s

side car door. Jenkins, the sole occupant of the car, was seated in the driver’s seat,

within easy reach of the firearm if the partially closed door were opened further.

Although the ground was wet, the gun and the cell phone charger beneath it were

dry, suggesting that they had both recently come from the car’s interior. Upon

awakening, Jenkins immediately reached into the area where the gun would have

to have been in order for it to have fallen out when the car door opened. When he

didn’t find it, Jenkins continued to reach into other areas of the car where


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individuals often keep firearms, even while being repeatedly tased. Two shell

casings were found in the car, both the same caliber as the gun found beneath the

car door. Further, Jenkins had gunshot residue on his hands, in an amount that was

inconsistent with mere contamination from the police. The evidence was sufficient

to support Jenkins’s conviction. Jackson, 443 U.S. 318–19.

      Second, Jenkins contends that the district court erred in refusing to instruct

the jury that voluntary intoxication was a defense to the crime under the particular

facts of his case. Instructional error is reviewed de novo. United States v.

Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir. 2004). Jenkins argued at trial that

voluntary intoxication was relevant to knowledge; on appeal, he now argues

instead that it was relevant to his intent to control the firearm, as required for the

jury to find he was in constructive possession of it. Federal Rule of Criminal

Procedure 30(d) requires a party objecting to the failure to give a jury instruction to

“inform the court of the specific objection and the grounds for the objection.”

Because Jenkins did not alert the district court to the grounds he now urges, we

review for plain error. Fed. R. Crim. P. 30(d), 52(b); United States v. Williams,

990 F.2d 507, 511 (9th Cir. 1993). Plain error is error that is plain and that affects

substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993).




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      We have never held that constructive possession requires specific intent, nor

that voluntary intoxication may be a defense to a violation of 18 U.S.C. §

922(g)(1). Jenkins could only locate a single case anywhere in the country in

which a circuit has done so. United States v. Newsom, 452 F.3d 593 (6th Cir.

2006). If the district court erred, the error was not plain. Olano, 507 U.S. at 732.

       AFFIRMED.




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