United States v. Jennings

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-50652 Summary Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN W. JENNINGS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-94-CR-264 - - - - - - - - - - June 20, 1996 Before KING, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

John W. Jennings argues that the district court plainly

erred in instructing the jury on "constructive and joint

possession." He further argues that the district court failed to

make the findings required by Fed. R. Crim. P. 32(c)(1) with

respect to his sentencing entrapment objection to the presentence

report. Jennings also argues that the district court erred in

denying his Fed. R. Crim. P. 29 motion for a judgment of

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-50652 -2-

acquittal because the evidence was insufficient to support his

conviction for possession with intent to distribute cocaine.

We have reviewed the record, including the transcripts of

the trial and the sentencing hearing, and the briefs of the

parties and affirm Jennings' conviction. The district court did

not commit plain error in instructing the jury on "constructive

and joint possession" because the instruction clearly and

correctly stated the law as applied to the facts of the case.

United States v. Lara-Velasquez, 919 F.2d 946, 950 (5th Cir.

1990).

The district court did not violate Rule 32(c)(1) by failing

to make specific findings on the issue of sentencing entrapment

because Jennings failed to clearly present that issue to the

district court. See United States v. Rodriguez, 897 F.2d 1324,

1327-28 (5th Cir.), cert. denied, 498 U.S. 857 (1990).

The district court did not err in denying Jennings' motion

for judgment of acquittal because, viewing the evidence in a

light most favorable to the verdict, a rational trier of fact

could have found that Jennings was guilty of possession with the

intent to distribute cocaine beyond a reasonable doubt. United

States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991).

AFFIRMED.