United States v. Rowell

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 21, 2000
• Docket: 99-20731
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20731 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID LEWIS ROWELL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-98-CR-318-ALL -------------------- July 21, 2000

Before JOLLY, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

David Lewis Rowell was convicted by a jury of possession of

a firearm by a felon and making a false statement to a firearms

dealer in violation of 18 U.S.C. §§ 922(a)(6) and (g). He

challenges the sufficiency of the evidence to find him guilty on

the felon-in-possession charge. He also challenges the district

court's decision to resentence him pursuant to Fed. R. Crim. P.

35(c).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20731 -2-

A reasonable jury could have inferred from the evidence that

Rowell knowingly had actual or constructive possession of

firearms and was guilty beyond a reasonable doubt of the charged

offense. See United States v. Ortega Reyna, 148 F.3d 540, 543

(5th Cir. 1998); United States v. Jones, 133 F.3d 358, 362 (5th

Cir.), cert. denied, 118 S. Ct. 1854 (1998) (possession may be

actual or constructive and may be proved by circumstantial

evidence).

A district court's ruling under Rule 35 will be reversed

"'only for illegality or gross abuse of discretion.'" United

States v. Lewis, 743 F.2d 1127, 1129 (5th Cir. 1984) (citation

omitted). The district court resentenced Rowell because the

original sentences were based on an error in the sentencing

guideline range as stated in the presentence report. The

correction of the sentencing error was within the authority of

the district court because the sentence in the original written

judgment reflected an "obvious error or mistake" that "would

almost certainly [have resulted] in a remand of the case." Fed.

R. Crim. P. 35 advisory committee's note. The sentences imposed

are not illegal and do not reflect an abuse of the district

court's discretion.

AFFIRMED.