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

                                                 FILED
                                                                           August 4, 2009

                                       No. 08-31016                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

DAVID A YOUNG, JR also known as, David Young

                                                   Defendant-Appellant




                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 3:08-CR-59-1


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Following a jury trial, David A. Young, Jr., was convicted of being a felon
in possession of a firearm; possession with intent to distribute cocaine;
possession with intent to distribute alprazolam 1 ; and possession of a firearm in
furtherance of a drug trafficking crime. He now challenges the sufficiency of the
evidence supporting the jury’s verdict with respect to the fourth count, that he



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       1
           Alprazolam is commonly known under its trade name “Xanax.”
                                        No. 08-31016

possessed a firearm in furtherance of a drug trafficking crime. For the following
reasons, we affirm the conviction.
                            FACTS AND PROCEEDINGS
       In October 2007, law enforcement officers investigating a report of illegal
gun possession and drug activity conducted a search of Young’s residence in
West Monroe, Louisiana. Young signed a consent form and, at the outset of the
search, admitted to possessing three firearms—a 12-gauge shotgun, a .22 caliber
rifle, and a 9mm handgun. The shotgun, which was loaded, and the rifle, which
was not loaded, were found near a bathroom. Meanwhile, the handgun was
found hidden between the mattress and the box spring of the bed in Young’s
bedroom. It was fully loaded, with ten bullets in the magazine and one in the
chamber.      The officers continued the search and discovered a wooden box
containing pill grinders and suspected cocaine. Young was then arrested. While
handcuffing Young, the officers noticed him attempting to conceal inhalers which
contained suspected cocaine. In addition, the officers recovered $457 in cash
from Young’s pocket and found $400 inside a pill bottle in his wife’s purse.
       Following his arrest, Young informed the officers that he kept a camera
bag containing drugs directly beneath the same bed in which the handgun was
found. This bag contained alprazolam pills, tablets, and suspected cocaine. The
suspected cocaine had been packaged into individual plastic bags, many of which
were labeled with distinctive graphic prints.2
       The government charged Young with (1) being a felon in possession of
firearms under 18 U.S.C. § 922(g)(1); (2) possession with intent to distribute
cocaine; and (3) possession with intent to distribute alprazolam, under 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and (b)(2); and (4) possession of firearms in furtherance


       2
        The government’s witness, Sergeant Jason Kukal, testified that this kind of packaging
and labeling is typical for cocaine intended for distribution. Kukal further testified that Young
told him that he planned to sell the alprazolam pills.

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of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A). The matter proceeded
to a jury trial and, at the close of the government’s evidence, Young moved for
a judgment of acquittal under Federal Rule of Criminal Procedure 29. The
district court denied the motion. The jury found Young guilty on all four counts.
On count four, the jury found Young guilty with respect to the handgun, but not
guilty with respect to the shotgun and rifle. He was sentenced to a total of 101
months’ imprisonment: 41 months on counts one and two and 36 months on
count three, with those three terms imposed concurrently; and 60 months on
count four, to be served consecutively. Young timely appealed.
                          STANDARD OF REVIEW
      Young contends that the district court erred in denying his motion for
judgment of acquittal based on insufficient evidence. “We review the district
court’s denial of a motion for judgment of acquittal de novo.” United States v.
Moody, 564 F.3d 754, 758 (5th Cir. 2009) (quoting United States v. Klein, 543
F.3d 206, 212 (5th Cir. 2008)) (internal quotation marks omitted). “Our review
for sufficiency of the evidence following a conviction is narrow. We will affirm
if a rational trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.” Id. (quoting Klein,
543 F.3d at 212) (internal quotation marks omitted). “All reasonable inferences
are drawn in the light most favorable to the prosecution.” Id. “[O]ur standard
of review does not change if the evidence that sustains the conviction is
circumstantial rather than direct.” Id. (quoting United States v. Morgan, 505
F.3d 332, 341 (5th Cir. 2007)) (alteration in original) (internal quotation marks
omitted).
                                 DISCUSSION
      Section 924(c)(1)(A) imposes a criminal penalty upon “any person who,
during and in relation to any crime of violence or drug trafficking crime . . . for
which the person may be prosecuted in a court of the United States, uses or

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carries a firearm, or who, in furtherance of any such crime, possesses a firearm.”
18 U.S.C. § 924(c)(1)(A). When a defendant is charged under the possession
prong of this statute, as in this case, “the appropriate standard of participation
is ‘in furtherance of’ a crime.” United States v. McGilberry, 480 F.3d 326, 329
(5th Cir. 2007).3 Young admits that he possessed the handgun, and he admits
that he committed the drug trafficking crimes of possession with intent to
distribute alprazolam and possession with intent to distribute cocaine. His sole
contention on appeal is that there was not sufficient evidence to support the
jury’s verdict that his possession of the handgun was in furtherance of these
crimes.
       In United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir. 2000), this court
set forth the circumstances under which a defendant’s possession of a firearm
will be considered “in furtherance” of a drug trafficking crime for purposes of
§ 924(c)(1)(A). In Ceballos-Torres, immigration agents entered the defendant’s
apartment for an immigration check. Id. at 411. While in the bedroom, the
agents noticed a 9mm handgun lying in plain view on the defendant’s bed and,
after determining he was in the United States illegally, arrested him.                  Id.
During a subsequent search of the apartment, the agents discovered over five
hundred grams of cocaine, over one thousand dollars in cash, and various drug
paraphernalia. Id. He was convicted of possession of a firearm in furtherance
of a drug trafficking crime. Id.
       The court determined that “firearm possession that furthers, advances, or
helps forward the drug trafficking offense violates the statute.” Id. at 415. It
elaborated:




       3
         By contrast, when the government charges a defendant with using or carrying a
firearm, the appropriate standard is “during and in relation to” a crime of violence or drug
trafficking crime. See McGilberry, 480 F.3d at 329.

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      Some factors that would help determine whether a particular
      defendant’s possession furthers, advances, or helps forward a drug
      trafficking offense might include: 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.
Id. at 414-15. Emphasizing that “more than ‘mere presence’ of the firearm at the
scene” is required to sustain a conviction, the court required “evidence more
specific to the particular defendant, showing that his or her possession actually
furthered the drug trafficking offense.”         Id. at 414.    Considering the
circumstances of the defendant’s possession in that case, this court affirmed the
conviction:
      The weapon was loaded and easily accessible in Ceballos’s
      apartment, and he confessed to ownership of the firearm. It was
      possessed illegally. And it was possessed in the apartment along
      with a substantial amount of drugs and money. Together, these
      factors reasonably support a finding that Ceballos’s gun protected
      his drugs and money against robbery. Possession of the [firearm]
      was, therefore, in furtherance of drug trafficking.
Id. at 415.
      In the present case, the facts surrounding Young’s possession of the
handgun weigh in favor of sustaining the conviction. Young’s handgun was
hidden but accessible, fully loaded, and possessed unlawfully. Furthermore, it
was found not only in the apartment along with drugs and money, but in close
proximity to a significant amount of suspected cocaine and alprazolam pills. In
light of this evidence, the jury could have reasonably inferred that Young
possessed the loaded handgun in order to protect his drugs and money, or to
protect himself in the event of an altercation during a drug transaction.      The
evidence was sufficient to find that Young’s possession of the handgun furthered,




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                                       No. 08-31016

advanced, or helped forward his possession of cocaine and alprazolam with
intent to distribute.4
       Young’s arguments to the contrary are not persuasive. First, while he
maintains that he kept the loaded handgun accessible to protect his family from
intruders, there was ample evidence from which the jury could reasonably infer
that his firearm possession furthered the drug trafficking offenses. “A jury is
free to choose among reasonable constructions of the evidence.” United States
v. Garcia, 567 F.3d 721, 731 (5th Cir. 2009) (quoting United States v. Bell, 678
F.2d 547, 549 (5th Cir. Unit B 1982)) (internal quotation marks omitted).
Moreover, “[i]t is not necessary that the evidence exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt.” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)
(quoting Bell, 678 F.2d at 549) (alteration in original) (internal quotation marks
omitted).
       Young next asserts that he did not obtain the handgun illegally. He
concedes, however, that his possession of the handgun was illegal.5 Section
924(c)(1)(A) does not require the defendant’s acquisition or possession of the
firearm to be unlawful in order to sustain a conviction. That Young possessed



       4
         Notably, this court has affirmed possession-in-furtherance convictions based on
factual circumstances similar to those present in this case. See, e.g., United States v. Yanez
Sosa, 513 F.3d 194, 201 (5th Cir. 2008) (finding the evidence “more than sufficient” where the
firearms were easily accessible, they were illegally possessed, one was fully loaded, and they
were “located near the bulk of the drugs that were recovered”); United States v. Nunez-
Sanchez, 478 F.3d 663, 669-70 (5th Cir. 2007) (finding evidence sufficient where firearm was
unloaded, found two feet from the defendant’s drugs, and possessed illegally, and where
matching ammunition was easily accessible); United States v. Charles, 469 F.3d 402, 406-07
(5th Cir. 2006) (finding evidence sufficient where firearm in close proximity to drugs and
currency was disassembled but could quickly be made ready for use).
       5
         To the extent Young contends that he believed his possession of the firearm to be
lawful, that argument is unavailing. Cf. United States v. Schmidt, 487 F.3d 253, 254-55 (5th
Cir. 2007) (rejecting claim that a defendant must know that he was a felon to sustain a
conviction under 18 U.S.C. § 922(g)(1)).

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                                  No. 08-31016

the firearm unlawfully is a factor in favor of affirming his conviction, see
Ceballos-Torres, 218 F.3d at 414-15; that Young may have acquired the firearm
lawfully in the first place, however, does not counsel in the other direction, and
he provides no authority to the contrary.
      Finally, Young argues that the government presented no evidence of his
involvement in any actual drug transactions. The statute, however, does not
require evidence of drug transactions. Instead, it requires the commission of a
drug trafficking crime, to which Young admits in his brief.
                                CONCLUSION
      For the foregoing reasons, Young’s conviction is AFFIRMED.




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