                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         June 29, 2005
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 04-1276
 v.
                                                 (D.C. No. 03-CR-312-RB)
                                                        (D. Colo.)
 ROBERT LEE HERNANDEZ, SR.,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Robert Lee Hernandez, Sr., (“Defendant”) was convicted by a jury of one

count of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g);

one count of possession of marijuana with intent to distribute, in violation of 21

U.S.C. § 841; and one count of possession of a firearm in furtherance of a drug

crime, in violation of 18 U.S.C. § 924(c). On appeal, Defendant raises a single



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
issue: whether the evidence presented at trial was sufficient to prove his guilt

beyond a reasonable doubt. Taking jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a), we AFFIRM Defendant’s convictions.



I.    Background

      In May 2003, an investigation conducted by the North Metro Drug Task

Force revealed that two individuals, Juan Hernandez and Nicholas Rueda, were

allegedly selling marijuana from a residence at 6025 Monaco Street in Commerce

City, Colorado. Based on the information discovered during their investigation,

the officers applied for and received a warrant to search the premises at 6025

Monaco Street for evidence of illegal drugs, which they executed shortly

thereafter.

      Upon entering the home, officers discovered a number of teenagers in the

living room, who quickly scattered upon seeing the police. While conducting a

safety sweep for additional occupants, officers discovered an adult male (later

discovered to be Defendant) alone in the northeast bedroom. Also discovered in

the bedroom were approximately 321 grams of marijuana, a digital scale, and

small plastic bags. In addition, officers found a 12-gauge shotgun and a .38-

caliber revolver hidden under a mattress as well as shotgun ammunition. During a




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search of the basement of the house, officers found a black duffle bag containing

approximately 15 pounds of marijuana in a closet.

      After the search, Defendant was placed under arrest and taken to a holding

cell, where he was read his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Afterwards, Defendant gave a statement to Detective Tyrone Streno of the

Commerce City Police. During his interview, Defendant admitted to knowingly

possessing the firearms as well as the marijuana found in the bedroom. When

asked about the large quantity of marijuana found in a duffle bag in the basement,

Defendant initially denied having any knowledge of the bag. However, in

response to continued questioning, Defendant admitted that the bag was his but

disputed the amount of marijuana discovered in the bag. Defendant also admitted

that he had recently moved in to the house at 6025 Monaco Street following a

burglary at his former home.

      The Federal Grand Jury for the District of Colorado returned a three-count

indictment against Defendant, charging him with possession of a firearm by a

felon, possession of marijuana with intent to distribute, and possession of a

firearm in furtherance of a drug crime. Defendant sought to suppress his

statements to police, citing lack of voluntariness and failure of police to comply




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with Miranda. 1 The court denied the motion, and after a four-day trial, the jury

returned guilty verdicts on each of the three counts in the indictment. The district

court sentenced Defendant to 40 months in prison on each of the first two counts

of the indictment (possession of a firearm by a felon and possession of marijuana

with intent to distribute), terms to run concurrently. On the third count, the

district court sentenced Defendant to 60 months in prison, to be served

consecutively to the sentences imposed for the first two counts.



II.   Discussion

      The question of whether the evidence presented at trial was sufficient to

support a conviction is reviewed de novo. United States v. Ivy, 83 F.3d 1266,

1284 (10th Cir. 1996.) The precise issue before us is

      whether, taking the evidence—both direct and circumstantial,
      together with the reasonable inferences to be drawn therefrom—in
      the light most favorable to the government, a reasonable jury could
      find the defendant guilty beyond a reasonable doubt. In order to
      conclude the evidence was insufficient, as a matter of law, to support
      a conviction, we must find that no reasonable juror could have
      reached the disputed verdict.




      1
       The record also indicates that Defendant moved to suppress the physical
evidence seized during the search on Fourth Amendment grounds. The district
court denied this motion and Defendant has not appealed that ruling.

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Id. Having carefully reviewed the parties’ briefs and the record before this court,

we conclude that the evidence presented to the jury at trial was sufficient to

support a guilty verdict on each count of the indictment.

      A.     Count I:      Possession of a firearm by a felon

      In order to support a conviction under 18 U.S.C. § 922(g), the Government

must show: (1) the defendant was convicted of a felony; (2) the defendant

thereafter knowingly possessed a firearm; and (3) the possession was in or

affecting interstate commerce. United States v. Capps, 77 F.3d 350, 352 (10th

Cir. 1996). On appeal, Defendant does not challenge the Government’s ability to

prove the first and third prongs of the offense; rather, Defendant argues that the

Government could not prove he had possession of the firearms recovered during

the search. We disagree.

      The record clearly indicates that Defendant admitted to police officers that

(1) the items found under the mattress were firearms; and (2) the firearms

belonged to Defendant. And while Defendant was not physically holding the

firearms when he was apprehended, he constructively possessed the guns for the

purposes of 18 U.S.C. § 922(g). See United States v. Mills, 29 F.3d 545, 549

(10th Cir. 1994) (noting that constructive possession is sufficient to support a

conviction under 18 U.S.C. § 922(g)). A person constructively possesses a

firearm when he has “ownership, dominion or control” over the object and the


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premises where it is found. Id. Here, the firearms were found hidden under a

mattress in the very same room where Defendant was apprehended. This fact,

plus Defendant’s own admission that firearms belonged to him, was sufficient for

a reasonable jury to find this defendant guilty beyond a reasonable doubt.

      B.     Count II:    Possession of marijuana with intent to distribute

      In order to meet its burden of proof under this count of the indictment, the

Government must show: (1) that Defendant knowingly possessed marijuana; and

(2) that he possessed the marijuana with the specific intent to distribute it. See

United States v. Carter, 130 F.3d 1432, 1440 (10th Cir. 1997). As with the felon-

in-possession charge, Defendant only challenges the Government’s ability to

prove the possession prong of the offense; he concedes that it would be

reasonable for the jury to infer an intent to distribute if possession were indeed

shown.

      Defendant’s main contention is that there was insufficient evidence to link

him to the black bag found in the basement of the residence, in which the majority

of the marijuana (some 15 pounds) was found. In support of this argument,

Defendant points to the fact that there was no physical evidence linking him to

the bag, nor was there any documentary evidence indicating that he actually

resided at 6025 Monaco Street. Defendant also points out inconsistencies in the




                                        -6-
testimony relating to his confession and other factors regarding his interview with

police which he argues could cast some doubt on the reliability of that confession.

      But Defendant’s points are better suited for a summation to a jury then they

are for consideration by this court on appeal. It is exclusively the province of the

jury to determine the credibility of witnesses, the weight to be accorded to the

evidence presented, the reasonable inferences to be drawn therefrom, and the

conclusions to be reached. United States v. McKissick, 204 F.3d 1282, 1289-90

(10th Cir. 2000). While Defendant points to the strongest evidentiary points in

favor of an acquittal, the record reveals ample evidence to support a conviction.

That the jury chose to believe one type of evidence over the other is a decision

within its sole decision and not subject to review by this court. See id. at 1289.

      With regard to the marijuana found in the basement, the most compelling

piece of evidence is Defendant’s own admission that the bag in which the

marijuana was found belonged to him. Furthermore, Defendant was the only adult

found in the house during the raid and was found in a room containing items such

as plastic bags and a digital scale—items used for measuring and packaging

drugs. Finally, Defendant admitted during his interview that “we” sell marijuana,

typically in amounts sold for $20.

      These pieces of evidence lend ample support to a conclusion that the drugs

discovered in the basement were in the constructive possession of Defendant. See


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United States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997) (noting that

constructive possession, which is sufficient to support a conviction under 21

U.S.C. §841, occurs when a person knowingly has ownership, dominion or control

over the narcotics and the premises where the narcotics are found.) A jury could

reasonably infer that Defendant took marijuana from the bag in the basement to

his bedroom, packaged individual portions using the equipment found there, and

then sold the drugs to the public. Thus, we conclude that the evidence presented

at trial was sufficient to support Defendant’s conviction under this charge of the

indictment.

      C.      Count III: Possession of a firearm in furtherance of a drug
                         crime

      Defendant argues that even if the Government could prove that Defendant

possessed the firearms seized during the search of the residence, the evidence at

trial was insufficient to show that the firearms were possessed “in furtherance” of

a drug crime, as is required by 18 U.S.C. § 924(c). (Aplt. Br. at 19.) We have

recognized several factors helpful in analyzing whether a firearm was possessed

in furtherance of a drug trafficking offense, including “the type of drug activity

being conducted, the accessibility of the firearm, the type of firearm, the legal

status of the firearm, whether the firearm is loaded, the proximity of the firearm

to the drugs or drug profits, and the time and circumstances under which the

firearm is found.” United States v. Basham, 268 F.3d 1199, 1208 (10th Cir.

                                        -8-
2001). Although “mere possession of a firearm in proximity to drugs” does not

require a finding that a weapon was possessed in furtherance of drug trafficking,

it could be considered by the jury along with other circumstantial evidence to

determine whether the defendant intended to possess the weapon “in furtherance

of” drug trafficking. Basham, 268 F.3d at 1208.

       Here, it is compelling that the firearms were found in very close proximity

to 321 grams of marijuana. In addition, the area in question contained a digital

scale and plastic bags used for measuring and packaging drugs. Finally, the

evidence reveals that the firearms were hidden under a mattress and easily

accessible to Defendant. These facts provide ample evidence upon which the jury

could have rested its verdict.



III.   Conclusion

       Viewing the evidence in the record in the light most favorable to the

Government, we are unable to conclude that no reasonable juror could have

reached the disputed verdict. Ivy, 83 F.3d at 1284. Because the evidence

presented at trial was sufficient to support the jury’s verdict, we AFFIRM

Defendant’s conviction on all counts.

                                        ENTERED FOR THE COURT


                                        David M. Ebel
                                        Circuit Judge

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