     Case: 18-31009       Document: 00515318770         Page: 1     Date Filed: 02/21/2020




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

                                                                                 FILED
                                     No. 18-31009                         February 21, 2020
                                   Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DEARIEUS DUHEART,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:17-CR-26-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Dearieus Duheart challenges: his jury conviction of possession, with
intent to distribute, marihuana, in violation of 21 U.S.C. § 841(a)(1); and his
within-Sentencing        Guidelines      sentence     of,   inter    alia,     24       months’
imprisonment.
       For his challenge to his conviction, Duheart contends the evidence is
insufficient to prove he knowingly possessed the marihuana. In support of this


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-31009

assertion, he points to evidence he presented at trial, which he contends
showed: he had arrived at an alleged drug house only 10 minutes before police
arrived; and the marihuana belonged to his co-defendant, Derrick Keelen,
whose assistance Duheart had sought to secure a position at a local factory.
      At the close of the Government’s case, Duheart moved for a judgment of
acquittal, on which the court deferred ruling. He did not, however, renew his
motion at the close of all the evidence, and the court never ruled on the original
motion. The parties do not address whether, given Duheart’s failure to renew
and the court’s not ruling on the motion, our review of this claim is de novo or
for plain error. See United States v. Delgado, 672 F.3d 320, 328–31 (5th Cir.
2012) (en banc) (holding plain-error review applies where defendant entirely
failed to move for judgment of acquittal in district court).           “Despite the
government’s failure to assert plain-error review, it is well-established that our
court, not the parties, determines the appropriate standard of review.” E.g.,
United States v. Kalu, 936 F.3d 678, 680 (5th Cir. 2019) (alteration, citation,
and internal quotation marks omitted). “Nevertheless, we need not determine
the standard of review because, assuming arguendo [Duheart’s sufficiency
claim] [was] sufficiently preserved, [it] still fail[s]”. Id. (citation omitted).
      Because the court deferred ruling on the motion, our review is limited to
the evidence adduced during the Government’s case-in-chief, which did not
include the earlier-described evidence relied upon on appeal by Duheart.
United States v. Carbins, 882 F.3d 557, 562 n.2 (5th Cir. 2018) (citing Fed. R.
Crim. P. 29(b); United States v. Brown, 459 F.3d 509, 523 (2006)). We review
this evidence, “whether circumstantial or direct, in the light most favorable to
the government, with all reasonable inferences and credibility choices to be
made in support of the jury’s verdict”. United States v. Rodriguez, 831 F.3d
663, 666 (5th Cir. 2016) (citation omitted). “We determine only whether a



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                                 No. 18-31009

rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt and are mindful that the jury retains the sole
authority to weigh any conflicting evidence and to evaluate the credibility of
witnesses.” Id. (alteration, citation, and internal quotation marks omitted).
      To obtain a conviction under 21 U.S.C. § 841(a)(1), “the government must
prove [defendant’s] knowing possession of a controlled substance with the
intent to distribute it” beyond a reasonable doubt. United States v. Cardenas,
748 F.2d 1015, 1019 (5th Cir. 1984) (citations omitted). Possession may be
actual or constructive. United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012)
(citation omitted). In joint-occupancy-of-residence cases, as in this instance,
constructive possession is satisfied “only when there is some evidence
supporting at least a plausible inference that the defendant had knowledge of
and access to the illegal item”. Id. (emphasis, citation, and internal quotation
marks omitted).
      The evidence presented in the Government’s case-in-chief was, inter alia:
an officer detected a strong odor of raw marihuana from outside a house; its
windows were covered, and the house had minimal furniture, which the officer
testified is consistent with a “trap house” used to package narcotics; upon
obtaining consent to enter the house, the officer saw a table on which were a
firearm and large quantities of marihuana in open, vacuum-sealed bags, which
the officer testified are used to transport marihuana before distribution; and
Duheart was seated at the table, within arm’s reach of the marihuana, which
was in plain view. A reasonable jury could conclude, therefore, that Duheart
knew of the existence of the marihuana and had access to it. See id. at 419–21
(citations omitted).
      For his sentencing challenge, Duheart contends the court violated the
Sixth Amendment by relying on acquitted conduct in imposing a two-level



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dangerous-weapon enhancement, pursuant to Guideline § 2D1.1(b)(1). (The
jury had acquitted Duheart of possessing a firearm in furtherance of a drug-
trafficking crime and of being a felon in possession of a firearm.) Because he
did not raise this issue in district court, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Duheart must show a forfeited plain error (clear or obvious error,
rather than one subject to reasonable dispute) that affected his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that
showing, we have the discretion to correct such reversible plain error, but
generally should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings”. Id.
      As Duheart concedes, his claim is foreclosed by United States v. Watts,
519 U.S. 148, 157 (1997) (citation omitted); he contends, however, that Watts
was undermined by United States v. Booker, 543 U.S. 220 (2005). This claim
is also foreclosed. United States v. Jackson, 596 F.3d 236, 243 n.4 (5th Cir.
2010) (citing United States v. Farias, 469 F.3d 393, 399 (5th Cir. 2006)).
      AFFIRMED.




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