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

                                                FILED
                                                                February 26, 2009
                                No. 08-10471
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE NICOLAS GARCIA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas


Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Jose Nicolas Garcia was convicted, following a jury trial, of conspiracy to
distribute and possess with intent to distribute more than 100 grams of heroin;
distribution of and possession with intent to distribute more than 100 grams of
heroin; and possession of a firearm in furtherance of a drug trafficking crime.
Garcia was sentenced to a total of 241 months of imprisonment. He argues on
appeal that the district court abused its discretion by refusing to give a jury
instruction on the affirmative defense of duress. He also asserts that there was


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10471

insufficient evidence for a reasonable jury to convict him of possessing a firearm
in furtherance of a drug trafficking crime.
      Garcia testified that he delivered the heroin because he was afraid for his
safety and that of his family. However, Garcia never explained why he harbored
this fear, and he admitted on cross-examination that no one actually ever
threatened him or his family. Thus, there is no evidence to support a finding (by
a preponderance of the evidence) in Garcia’s favor on the first necessary element
of the defense of duress: that he be under a “present, imminent, or impending”
threat when he delivered the heroin. See United States v. Posada-Rios, 158 F.3d
832, 873-74 (5th Cir. 1998); see also United States v. Villegas, 899 F.2d 1324,
1344 (5th Cir. 1990) (noting that “[e]vidence of a mere ‘generalized fear’ does not
satisfy the requirement of a well-founded fear of impending death or serious
bodily harm” for a duress defense). Therefore, district court did not abuse its
discretion by denying his requested jury instruction. See Posada-Rios, 158 F.3d
at 873-75.
      Garcia also contends that there was insufficient evidence to convict him
of possessing a firearm in furtherance of a drug trafficking crime. He contends
that the Government failed to show a nexus between the firearm and any
criminal activity. Because Garcia moved a for judgment of acquittal at the close
of the Government’s case and at the close of all of the evidence, the issue is
preserved for review. See F ED. R. C RIM . P. 29(a). The standard of review in
assessing the sufficiency challenge is “whether, considering all the evidence in
the light most favorable to the verdict, a reasonable trier of fact could have found
that the evidence established guilt beyond a reasonable doubt.” United States
v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
      Testimony at trial established that Garcia’s house was used to store the
heroin that he and his coconspirator obtained from Mexico. At the time of his
arrest, Garcia was found in possession of 150.9 grams of heroin. Later, an
additional 79.3 grams of heroin were seized from Garcia’s house along with a

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sawed-off shotgun (the serial number of which had been obliterated). Garcia
acknowledged that he owned the shotgun and the heroin. The shotgun was
loaded, easily accessible, and located in the same room as the heroin. Although
the shotgun was described as being in “poor shape,” it was “in working order”
and illegal to possess.     Furthermore, an agent employed by the Drug
Enforcement Administration testified that it is common to find drugs and
firearms in the same area, “[b]ecause the drug traffickers typically are afraid
that somebody might rip them off of their drugs, so they keep guns for
protection.” The evidence was sufficient for a reasonable factfinder to have
found Garcia guilty of possessing the shotgun in furtherance of the drug
trafficking crime. See United States v. Ceballos-Torres, 218 F.3d 409, 414-15
(5th Cir. 2000). Accordingly, the judgment of the district court is AFFIRMED.




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