                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2005

USA v. Echevarria
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3783




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-3783


                           UNITED STATES OF AMERICA

                                            v.

                         HERMENGILDO ECHEVARRIA, JR.,

                                                        Appellant


                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                        (D.C. Criminal Action No. 02-cr-00323)
                     District Judge: Honorable Bruce W. Kauffman


                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 28, 2004

              Before: NYGAARD, AMBRO, and GARTH, Circuit Judges

                                 (filed: March 30, 2005 )




                                        OPINION


AMBRO, Circuit Judge

       Appellant Hermengildo Echevarria, Jr. appeals his conviction and sentence. For

the reasons that follow, we affirm his conviction. However, in light of United States v.

Booker, 543 U.S. ----, 125 S.Ct. 738 (2005), we vacate his sentence and remand for
resentencing.

       The District Court had jurisdiction under 18 U.S.C. § 3231. Our Court has

jurisdiction pursuant to 28 U.S.C. § 1291. As we write solely for the parties, we do not

restate the facts underlying the appeal.

                                             I.

       Echevarria argues that there was insufficient evidence to support his conviction for

(1) possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C.

§ 922(g), and (2) possession of cocaine base with the intent to distribute in violation of 21

U.S.C. § 841(a)(1). Specifically, he contends that the Government failed to prove beyond

a reasonable doubt that he “constructively possessed” the contraband at issue in this case,

which was not found on his person but concealed in the house in which he was arrested.

       “In reviewing a jury verdict for insufficiency of the evidence, this court must

consider the evidence in the light most favorable to the government and affirm the

judgment if there is substantial evidence from which any rational trier of fact could find

guilt beyond a reasonable doubt.” U.S. v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992) (citing

Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Aguilar, 843 F.2d 155,

157 (3d Cir. 1988)). Viewing the record from this perspective, we are convinced that

substantial evidence existed that Echevarria constructively possessed the contraband.

       At trial the Government introduced, inter alia, the following evidence: (1) the

testimony of an eyewitness who saw Echevarria holding the gun at issue and wearing a



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leather jacket that was later seized by the police; (2) keys removed from the jacket, one of

which was shown to open a safe containing the cocaine base (and other supplies

commonly employed by those involved in the production and distribution of drugs) and

another of which was shown to open the front door of the house in which the contraband

was found and Echevarria was arrested; (3) additional evidence establishing that the

jacket was in fact Echevarria’s and was worn by him on the night in question; (4)

evidence tending to establish that he was aware of the gun’s location in the drawer in

which it was found; and (5) ammunition found by police in an upstairs bedroom in which

three forms of government-issued identification belonging to Echevarria were also found.

       On the basis of this evidence, a rational jury could conclude that Echevarria

“knowingly ha[d] both the power and the intention at a given time to exercise dominion

or control over [the contraband], either directly or through another person or persons.”

U.S. v. Garth, 188 F.3d 99, 112 (3d Cir. 1999). In this context, his conviction is affirmed.

                                             II.

       Only Echevarria’s challenge to his sentence under Booker remains. Having

determined that the sentencing issues he raises are best determined by the District Court

in the first instance, we vacate his sentence and remand for resentencing in accordance

with Booker.




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