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

                                                                            FILED
                                                                           April 23, 2008
                                     No. 07-20387
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

JEMEYEL BRATON EAGLIN

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:05-CR-313-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Jemeyel Braton Eaglin was convicted by a jury of possession with intent
to distribute cocaine base (Count One), possession of a firearm in furtherance of
a drug trafficking crime (Count Two), and possession of a firearm by a convicted
felon (Count Three). Eaglin was sentenced to concurrent 120-month terms of
imprisonment on Count One and Count Three and to a consecutive five-year
term of imprisonment on Count Two.



       *
        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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                    No. 07-20387

      Eaglin argues that the evidence was insufficient to support his conviction
on Count Two for possession of a firearm in support of a drug trafficking crime.
Ordinarily, the standard of review for a sufficiency claim is “whether any
reasonable trier of fact could have found that the evidence established the
appellant’s guilt beyond a reasonable doubt.” United States v. Jaramillo, 42
F.3d 920, 922-23 (5th Cir. 1995).
      The Government contends, however, that Eaglin failed to properly
preserve the issue of the sufficiency of the evidence because he did not renew his
motion for a judgment of acquittal under Rule 29 of the Federal Rules of
Criminal Procedure at the close of all the evidence. Eaglin maintains that his
objection to a jury instruction on constructive possession was effective to
preserve the issue. Because, as discussed below, the evidence is sufficient under
the ordinary standard, we need not resolve this question.
      The evidence presented at trial showed that several firearms were in plain
view in the house where Eaglin was arrested. Eaglin exercised control over a
bedroom and a closet where firearms were found in close proximity to a baggie
containing a distributable quantity of crack cocaine. At least one of the firearms
found in this area was loaded. The evidence was sufficient to prove that Eaglin
was in constructive possession of the firearms. See United States v. Mergerson,
4 F.3d 337, 349 (5th Cir. 1993). The evidence was likewise sufficient to show
that Eaglin possessed firearms in furtherance of a drug trafficking offense. See
United States v. Ceballos-Torres, 218 F.3d 409, 410-11 (5th Cir.), amended in
other part, 226 F.3d 651 (5th Cir. 2000). Eaglin has failed to demonstrate that
the evidence was insufficient to support his conviction on Count Two. See
Jaramillo, 42 F.3d at 922-23.
      Eaglin also agues that testimony by two Houston narcotics officers was
forbidden profile evidence and that the officers’ testimony violated Rule 704(b)
of the Federal Rules of Evidence. As Eaglin concedes, his failure to object to the
testimony at trial results in review for plain error. United States v. Maldonado,

                                         2
                                  No. 07-20387

42 F.3d 906, 912 (5th Cir.1995). Under the plain error standard, the appellant
bears the burden of showing (1) there is an error, (2) that is plain, and (3) that
affects substantial rights. United States v. Olano, 507 U.S. 725, 732 (1993). If
these factors are established, the decision to correct the forfeited error is within
the court’s sound discretion, which will not be exercised unless the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 736.
      The testimony given by the narcotics officers concerned the import of
physical evidence -- crack cocaine and firearms -- present in the house. The
challenged testimony was not impermissible profile evidence. See United States
v. Williams, 957 F.2d 1238, 1242 (5th Cir. 1992). Eaglin has failed to show plain
error. See Olano, 507 U.S. at 732.
      We also reject Eaglin’s contention that the testimony of the narcotics
officers was improper under Rule 704(b).         The rule “prohibits only direct
statements on the issue of intent.” United States v. Triplett, 922 F.2d 1174, 1182
(5th Cir. 1991); (quotations marks and citation omitted); see United States v.
Masat, 896 F.2d 88, 93 (5th Cir. 1990). Here, the testimony of the narcotics
officers did not state “an opinion or inference as to whether [Eaglin] did or did
not have the mental state or condition constituting an element of the crime
charged.” See Rule 704(b). Rather, the challenged testimony was an explanation
focused on the evidence and an analysis of that evidence based on the officers’
experience in narcotics trafficking.         As such, the testimony was not
impermissible under Rule 704(b). See United States v. Gutierrez-Farias, 294
F.3d 657, 663 n.5 (5th Cir. 2002); Speer v. United States, 30 F.3d 605, 610 (5th
Cir. 1994). Eaglin has not shown plain error. See Olano, 507 U.S. at 732.
      AFFIRMED.




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