                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            May 27, 2008
                             No. 07-12448                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 06-20336-CR-DLG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ISAAC CASTILLO,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (May 27, 2008)

Before ANDERSON, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Isaac Castillo appeals his conviction and sentence of 235 months’

imprisonment for possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e)(1). Castillo raises three issues on appeal: (1) he

asserts the evidence presented at trial was insufficient for a reasonable jury to

convict him for possession of a firearm; (2) he contends the district court erred by

instructing the jury that both parties had the power to subpoena and call witnesses;

and (3) he asserts the district court erred by imposing a procedurally and

substantively unreasonable sentence. After review, we affirm his conviction and

sentence.

                                           I.

      Castillo asserts the evidence at trial was insufficient to support a conviction

because Castillo was not present when the police seized the firearm and there was

no credible evidence that Castillo had actual or constructive possession of the

firearm. Castillo also contends the testimony of certain Government witnesses was

incredible because the witnesses expected to benefit from their testimony, had prior

convictions, or their testimony conflicted with that of another witness.

      We review de novo the sufficiency of the evidence supporting a criminal

conviction. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). We

must determine whether “a reasonable fact-finder could conclude that the evidence



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established the defendant’s guilt beyond a reasonable doubt.” United States v.

Pistone, 177 F.3d 957, 958 (11th Cir. 1999). In considering the sufficiency of the

evidence, we view all of the evidence “in the light most favorable to the verdict,

drawing all reasonable inferences and resolving all questions of credibility in favor

of the government.” Hasson, 333 F.3d at 1270. Credibility determinations are for

the jury, and we typically will not review such determinations. United States. v.

Copeland, 20 F.3d 412, 413 (11th Cir. 1994). Where the argument is that the jury

based its conviction on inconsistent testimony or incredible government witnesses,

the appellant must show the testimony was “incredible as a matter of law.” United

States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). For testimony to be

“incredible as a matter of law,” it must be unbelievable on its face, i.e., “testimony

as to facts that the witness could not have possibly observed or events that could

not have occurred under the laws of nature.” Id. (quotations and alteration

omitted). Moreover, a witness’s testimony is not incredible just because he “has

consistently lied in the past, engaged in various criminal activities, and thought that

his testimony would benefit him.” Id. (quotations and alteration omitted).

      In order to convict a defendant of being a felon in possession of a firearm

under 18 U.S.C. § 922(g)(1), the government must prove beyond a reasonable

doubt that (1) the defendant was a convicted felon, (2) the defendant knowingly



                                           3
possessed a firearm, and (3) the firearm was in or affected interstate commerce.

United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000).1 To

establish “knowing possession,” the government must prove actual or constructive

possession through direct or circumstantial evidence. United States v. Greer, 440

F.3d 1267, 1271 (11th Cir. 2006). “Constructive possession exists when the

defendant exercises ownership, dominion, or control over the item or has the power

and intent to exercise dominion or control.” Id. Mere presence near contraband, or

awareness of its location, is insufficient to establish possession. United States v.

Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992).

       Although the evidence from trial does not support that Castillo was actually

present when the rifle was discovered in his grandmother’s house, the Government

presented evidence that Castillo lived in the grandmother’s house, and specifically

lived in the room in which the rifle was found. Sergeant Robert Perez testified the

room from which he seized the rifle was located at the back of the house and

contained men’s jewelry. Detective Barbara Nelson testified Castillo provided his

grandmother’s address as his own to Nelson before the rifle was discovered and

had referred to the house as his during their conversation after the rifle was



       1
           Castillo only argues the Government failed to prove the issue of “knowing possession”
of the firearm. Castillo stipulated at trial that he was a convicted felon, and he does not dispute
the firearm was in interstate commerce.

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discovered. Juan Carlos Crespo and Mario Davis both testified Castillo referred to

the house as his own when he talked to them about the discovery and seizure of the

rifle. Crespo also testified Castillo described his bedroom as being located at the

back of his grandmother’s house. Castillo’s probation officer, Jose Peralta, had

visited Castillo at his grandmother’s house before the discovery of the rifle, and

testified Castillo had lived in the back bedroom and had not notified him of a

change in address before the discovery of the rifle, as required before a probationer

moves. The only evidence Castillo no longer lived at his grandmother’s house

came from Castillo’s own statements to Peralta after the rifle was discovered. The

evidence presented by the Government was sufficient for the jury to have

reasonably drawn a conclusion that Castillo was living in his grandmother’s house

when the rifle was discovered and that the rifle was located in Castillo’s bedroom.

See Pistone, 177 F.3d at 958.

      The Government also presented evidence that Castillo had knowing and

constructive possession of the rifle. Detective Nelson testified Castillo told her he

was storing the rifle for a friend and he was present when his friend delivered the

rifle. Crespo also testified Castillo told him the rifle belonged to a friend. Crespo

and Davis both testified Castillo told them he had the rifle and had handled it.

Davis also testified Castillo described the firearm as a .30-06 rifle and described



                                           5
the bullets as being the size of a pen. The Government’s expert witness, Greene,

verified the rifle seized from Castillo’s grandmother’s house was a .30-06 rifle and

the bullets for the rifle were about three and a half inches long with a pointed tip.

This is sufficient evidence from which a reasonable jury could infer Castillo

actually exercised control over the rifle. See Greer, 440 F.3d at 1271. Therefore,

the evidence is sufficient to support the jury’s finding that Castillo knowingly

possessed the rifle. See id.

      Castillo’s assertion that the Government’s witnesses provided incredible

testimony is unpersuasive. First, a witness’s prior convictions and lies and

possible benefit from testifying does not make that testimony incredible.

Calderon, 127 F.3d at 1325. Here, the jury had the opportunity to view first-hand

the individuals presenting the evidence and to weigh their credibility. Both parties

thoroughly elicited the witnesses’ capacity for truthfulness, prior convictions, and

status as cooperating witnesses through direct and cross-examination. The district

court fully instructed the jury about the credibility of witnesses. The jury, by its

verdict, impliedly found the testimony of these witnesses to be credible. Second,

even if one witness’s testimony contradicts that of another, the jury decides which

witness to believe and how much of that witness’s testimony to believe. Moreover,

in this case, contrary to Castillo’s argument on appeal, Detective Nelson’s



                                           6
testimony that Castillo was present when the gun was delivered was not in direct

contradiction of Peralta’s statements, but rather contradicted Castillo’s statements

to Peralta. Castillo has failed to show the testimony is “incredible as a matter of

law,” as required by this Court to review the credibility determinations of the jury.

See id. The record does not show any evidence the testimony was unbelievable on

its face or contained facts or events that could not possibly have occurred. See id.

Therefore, the testimony was sufficient to allow the jury to find Castillo guilty

beyond a reasonable doubt.

                                            II.

       Castillo next argues the district court erred when it instructed the jury that

both parties have equal subpoena power, because this jury instruction

unconstitutionally shifted the burden of proof to the defense.

       Although Castillo objected to the jury instruction with the specific grounds

of “shifting the burden of proof,” he did not object until after the jury retired to

deliberate. Where a party makes no specific objection to the jury charge at trial

before the jury retires to deliberate, we review the claim for plain error. United

States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006), cert. denied, 127 S. Ct.

1305 (2007). Plain error is found only where the defendant demonstrates: (1) there

is an error; (2) the error is plain; (3) the error affects the defendant’s substantial



                                             7
rights; and (4) the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Olano, 113 S. Ct. 1770, 1777-

78 (1993).

      “[I]t is not improper for a prosecutor to note that the defendant has the same

subpoena powers as the government.” United States v. Hernandez, 145 F.3d 1433,

1439 (11th Cir. 1998). In Hernandez, we rejected the defendant’s burden-shifting

argument, noting any potential prejudice caused by the prosecutor’s statement

about subpoena powers was diminished by the trial court’s explicit jury instruction

that the prosecution had the burden of proof. Id.

      Although the district court instructed the jury that both parties could call

witnesses at trial, the district court’s instructions also made clear the burden of

proof rested only with the Government. By instructing the jury of the

Government’s burden of proof, the district court removed any possible prejudicial

effect of its jury instruction regarding Castillo’s subpoena powers and thus did not

shift the burden to the defense. See Hernandez, 145 F.3d at 1439. Therefore, the

court did not plainly err.

                                           III.

      Castillo contends the district court imposed a procedurally and substantively

unreasonable sentence. Castillo asserts that, based on the facts shown, the sentence



                                            8
of 235 months’ imprisonment is “unreasonably harsh” and “far in excess of what

was necessary in order to meet the statutory goals for sentencing.”

      We review the final sentence imposed by the district court for

reasonableness. United States v. Booker, 125 S. Ct. 738, 767 (2005).

Reasonableness review is akin to an abuse-of-discretion standard. Gall v. United

States, 128 S. Ct. 586, 594 (2007). A sentence must be both procedurally and

substantively reasonable. Id. at 597. A sentence may be procedurally

unreasonable if the district court improperly calculates the Guidelines range, treats

the Sentencing Guidelines as mandatory rather than advisory, fails to consider the

appropriate statutory factors, selects a sentence based on clearly erroneous facts, or

fails to adequately explain the chosen sentence. Id. After reviewing the procedural

reasonableness of a sentence, we then review the substantive reasonableness of a

sentence under an abuse-of-discretion standard. Id. The review for substantive

reasonableness involves examining the totality of the circumstances, including an

inquiry into whether the statutory factors in 18 U.S.C. § 3553(a) support the

sentence in question. Id. at 597-600.

      Pursuant to § 3553(a), the sentencing court shall impose a sentence

“sufficient, but not greater than necessary” to reflect the seriousness of the offense,

promote respect for the law, provide just punishment for the offense, deter criminal



                                           9
conduct, protect the public from future crimes of the defendant, and provide the

defendant with needed educational or vocational training or medical care. See 18

U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors

in determining a particular sentence: the nature and circumstances of the offense

and the history and characteristics of the defendant, the kinds of sentences

available, the Guidelines range, the pertinent policy statements of the Sentencing

Commission, the need to avoid unwanted sentencing disparities, and the need to

provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).

      Although this Court does not apply a presumption of reasonableness to a

sentence that is within the properly calculated Guidelines range, see United States

v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007), we ordinarily expect a

sentence within the Guidelines range to be reasonable, United States v. Talley, 431

F.3d 784, 788 (11th Cir. 2005). The party challenging the sentencet has the burden

of establishing that the sentence is unreasonable in light of the record and the

§ 3553(a) factors. Id.

      The district court imposed a procedurally reasonable sentence. The district

court correctly calculated Castillo’s Guidelines range, and heard the arguments of

Castillo’s counsel and Castillo himself. The court acknowledged it had considered

these statements, the PSI, the advisory Guidelines, and the § 3553(a) factors. In



                                          10
explaining its sentencing decision, the court specifically addressed the § 3553(a)

factors of the nature and circumstances of the offense, the history and

circumstances of the defendant, and the need for the sentence imposed, especially

to promote respect for the law and provide just punishment.

      The district court also imposed a substantively reasonable sentence, as the

sentence was supported by the § 3553(a) factors. In explaining its sentencing

decision, the district court expressly discussed Castillo’s failure to accept

responsibility for his actions, his extensive criminal history, and his refusal to

abide by the law, as indicated by his previous convictions related to firearms and

his commission of the instant offense while on probation for another offense.

Therefore, the court found it appropriate to impose a sentence within the

Guidelines range. In imposing the sentence, the district court relied on the

§ 3553(a)(2) purposes of deterrence, promoting respect for the law, and providing

just punishment. Given that Castillo’s sentence was within the Guidelines range,

he had prior convictions, he denied any responsibility for his actions, and the

district court was influenced by the § 3553(a) factors, the sentence is substantively

reasonable.




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                                         IV.

      The evidence was sufficient to establish Castillo’s guilt of possession of a

firearm by a convicted felon. Additionally, the district court committed no plain

error in giving a jury instruction regarding the subpoena power of each party.

Lastly, Castillo’s sentence was reasonable. Accordingly, we affirm Castillo’s

conviction and sentence.

      AFFIRMED.




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