     Case: 09-51045     Document: 00511268406          Page: 1    Date Filed: 10/20/2010




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

                                                 FILED
                                                                          October 20, 2010
                                     No. 09-51045
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANDRES AGUIRRE JAIMES,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:09-CR-50-1


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Andres Aguirre Jaimes appeals his jury trial conviction of possession of
firearms in furtherance of a drug trafficking crime, namely, distributing powder
cocaine, in violation of 18 U.S.C. § 924(c)(1)(A).               Jaimes argues that the
Government failed to prove he possessed the firearms in furtherance of the drug
trafficking crime.
        Because Jaimes preserved his challenge to the sufficiency of the evidence,
we review the sufficiency of the evidence de novo. See United States v. Mitchell,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-51045    Document: 00511268406 Page: 2        Date Filed: 10/20/2010
                                 No. 09-51045

484 F.3d 762, 768 (5th Cir. 2007).      We will uphold the jury’s verdict if a
reasonable trier of fact could conclude from the evidence that the elements of the
offense were established beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979).         We review the evidence, both direct and
circumstantial, as well as all reasonable inferences from that evidence, in the
light most favorable to the verdict. See United States v. Rose, 587 F.3d 695, 702
(5th Cir. 2009), cert. denied, 130 S. Ct. 1915 (2010). Moreover, we determine
only whether the jury made a rational decision, not whether its verdict was
correct on the issue of guilt or innocence. See United States v. Dean, 59 F.3d
1479, 1484 (5th Cir. 1995).
      We have set forth a non-exhaustive list of factors to determine whether
possession of a firearm furthers, advances, or helps forward a drug trafficking
offense, which includes (1) the type of drug activity, (2) the type of firearm, (3)
the accessibility of the firearm, (4) the proximity of the firearm to drugs or drug
profits, (5) whether the firearm was loaded, (6) whether the firearm was stolen,
(7) whether the firearm was possessed legally or illegally, and (8) the time and
circumstances under which the firearm was found. United States v. Ceballos-
Torres, 218 F.3d 409, 414-15 (5th Cir.), amended in part on other grounds, 226
F.3d 651 (5th Cir. 2000). Jaimes disputes that his possession of the firearms
was “in furtherance of” his cocaine trafficking activities. He contends that he did
not possess the ammunition necessary to operate the firearms listed in the
indictment against him, that he did not carry or display the firearms during the
cocaine transactions, and that he did not barter guns for drugs. Even if all of
Jaimes’s contentions are true, they are not enough to establish that the evidence
was insufficient as a matter of law to convict him of possessing a firearm in
furtherance of a drug trafficking offense.
      Jaimes admitted that he engaged in a drug trafficking offense when he
distributed powder cocaine. There was testimony regarding the dangerous
nature of drug trafficking, including testimony that one of Jaimes’s cocaine

                                        2
   Case: 09-51045    Document: 00511268406 Page: 3       Date Filed: 10/20/2010
                                 No. 09-51045

suppliers had been murdered when someone threw a hand grenade into his car.
Jaimes possessed three different firearms—a handgun, a revolver, and an
assault-style shotgun—all of which were located in Jaimes’s bedroom closet.
Thus, the firearms were readily accessible to Jaimes. The firearms were located
in close proximity to a bag containing 140 grams of cocaine, other cocaine
stashes, cocaine packing materials, a box of .25 caliber auto shells, ammunition
for a Luger 9mm pistol, a BB gun with ammunition, digital scales, currency, and
drug ledgers, found in Jaimes’s bedroom, bedroom closet, and hall closet. There
was testimony that drug traffickers commonly possess firearms for purposes of
protection, security, and intimidation and that drug traffickers frequently
conceal their firearms during drug transactions. There was also testimony that
law enforcement officers frequently recover mismatched firearms and
ammunition because of the nature of the drug trafficking industry, which often
involves bartering guns for drugs.
      “The fact that a firearm is ‘unloaded’ or ‘inoperable’ does not insulate the
defendant from the reach of section 924(c).” United States v. Coburn, 876 F.2d
372, 375 (5th Cir. 1989). “As the Supreme Court has recognized, an unloaded
firearm is a dangerous weapon capable of provoking a violent response.” Id.
(citing McLaughlin v. United States, 476 U.S. 16, 18 (1986)).
      The jury was free to choose among any reasonable construction of the
evidence. See Mitchell, 484 F.3d at 768. Moreover, “[i]t is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” Id. The foregoing
evidence forms a sufficient basis for a rational juror to conclude that Jaimes
possessed firearms in furtherance of cocaine trafficking. See Ceballos-Torres,
218 F.3d at 415.
      The district court’s judgment is AFFIRMED.




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