     Case: 12-51293      Document: 00512474431         Page: 1    Date Filed: 12/17/2013




                      REVISED DECEMBER 17, 2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-51293
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 17, 2013
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JAVIER IBARRA CARRANZA, also known as Javier Ibarra,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CR-184-2


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       A jury convicted Javier Ibarra Carranza of conspiracy to possess with
intent to distribute more than 100 kilograms of marijuana (21 U.S.C. §§ 841
and 846), possession with intent to distribute more than 100 kilograms of
marijuana (§ 841), possession of a firearm in furtherance of a drug trafficking
crime (18 U.S.C.§ 924(c)(1)(A)), and aiding and abetting the possession of a

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 12-51293

firearm by an illegal alien (18 U.S.C. §§ 922(g)(5), 924(a) and 2). On appeal,
Ibarra challenges the sufficiency of the evidence on the two firearms counts,
arguing that the evidence was insufficient to show that he possessed a firearm.
      Evidence will be deemed sufficient if any rational trier of fact could have
found that it established guilt beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318 (1979). Although Ibarra moved for a judgment of acquittal
after the Government rested, he failed to renew the motion at the close of all
evidence. Accordingly, his sufficiency claim is reviewed for plain error. See
United States v. Delgado, 672 F.3d 320, 330-32 (5th Cir.) (en banc), cert. denied
133 S. Ct. 525 (2012). In the context of a sufficiency challenge, to establish
plain error, the defendant “must demonstrate not just that the government’s
evidence . . . was insufficient, but that it was obviously insufficient.” Id. at 331.
We will find the requisite obviousness only if “the record is devoid of evidence
pointing to guilt or if the evidence is so tenuous that a conviction is shocking.”
Id. (internal quotation marks and citation omitted).
      Possession of a firearm may be actual or constructive and may be proven
by circumstantial evidence. United States v. De Leon, 170 F.3d 494, 496 (5th
Cir. 1999). “Constructive possession need not be exclusive, it may be joint with
others . . . .” United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992). In
joint occupancy cases, constructive possession of a firearm may be established
by evidence that the defendant had access to and knowledge of the firearm.
See United States v. Anderson, 559 F.3d 348, 353 (5th Cir. 2009); see also
United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996).
      In the instant case, detectives found a loaded assault rifle inside of a
pillowcase on a bed in the living room and two loaded handguns underneath
the same pillow. A rifle case, with a rifle inside, was found in one of the
bedrooms. Several ammunition magazines and loose rounds were found in



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                                No. 12-51293

plain view inside the house. There also was testimony that the house clearly
appeared to be a “stash house,” with a large quantity of marijuana in plain
view in one bedroom, and a smaller quantity of cocaine was in plain view in
the living room. Witnesses also testified that drug traffickers are known to
keep firearms near their drug supplies. Based on this evidence, we conclude
that the record was not “devoid of evidence” that would allow a plausible
inference that Ibarra had knowledge of and access to these firearms. See
Delgado, 672 F.3d at 331 (internal quotation marks and citation omitted);
Fields, 72 F.3d at 1212.
      The record does reveal a clerical error in the judgment. The written
judgment provides that, as to Count Three, Ibarra was convicted of “possession
of a firearm during a drug transaction.”      Count Three itself is somewhat
unclear because it appears to conflate the use and carry and possession prongs
of § 924(c)(1)(A). See United States v. McGilberry, 480 F.3d 326, 329 (5th Cir.
2007). The judgment should be corrected to properly identify the offense of
conviction on Count Three.
      Therefore, Ibarra’s convictions are AFFIRMED.            The matter is
REMANDED for correction of the clerical error pursuant to Federal Rule of
Criminal Procedure 36.




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