United States v. Ybarra

70 F.3d 362, 1995 U.S. App. LEXIS 32686, 1995 WL 692990
Court of Appeals for the Fifth Circuit·Decided November 22, 1995·No. 94-20853·Published·Cited by 71 cases

Opinion

DeMOSS, Circuit Judge:

This is an appeal from a conviction for felon in possession of a weapon, 18 U.S.C. § 922(g). Defendant Gilbert Caballero Ybar-ra (‘Ybarra”) claims (1) that the evidence was insufficient to convict him and (2) that the district court erred in including two previous convictions in his criminal history for sentencing purposes. Finding that the evidence was sufficient to convict Ybarra and that the two convictions were properly included in his criminal history, we AFFIRM the judgment of the district court.

*364 BACKGROUND

On July 28, 1992, an undercover Houston police officer went to 6504 Longview in Houston to buy heroin. Herlinda Ybarra (“Her-linda”), Ybarra’s wife, answered the door. Ybarra, who was in the living room of the house, directed Herlinda to sell heroin to the officer. Later that evening, police executed a search warrant at the address. Ybarra was not home, but his wife and children were. During the search, police found two loaded guns between the mattress and the box springs of the bed.

One of the bedrooms in the house was occupied by an adult man and woman. In that room, the police found both men’s and women’s clothing, including a work shirt hanging in the closet with the name “Ybarra” on it. In the bedroom there were photographs of Ybarra and Herlinda. A cable company employee ID in the name “Gilbert Ybarra” was also found in the bedroom.

In the bedroom and the kitchen the police found several pieces of mail addressed to Ybarra at 6504 Longview. Among the mail were two bills postmarked in January 1992 and an envelope postmarked April 1992.

Ybarra had been seen previously by the police at 6504 Longview. The night before the search, an officer saw Ybarra coming out of the house and driving away in a brown truck which they had seen previously parked at the home. During the search, the same brown truck was parked in front of the house. One of the officers “ran the license plate on the truck; and it came back with two traffic warrants in Gilbert Ybarra’s name.”

During the search, an officer asked Herlin-da where Ybarra was. She said that he had gone to the store and that, as long as the police were parked in front of the house, “there’s no way he’s coming home.”

On July 19, 1993, almost a year after the search, a Houston police officer and an agent of the Bureau of Alcohol, Tobacco and Firearms (“ATF”) went to 6504 Longview to interview Ybarra. Ybarra was there and spoke with the officers. The officers testified that Ybarra admitted that he owned the firearms found during the search, that he was a convicted felon and that he knew he could not legally possess weapons. At trial Ybarra denied that he had admitted to owning the guns.

At trial, Ybarra’s sister and brother-in-law testified that Ybarra was living with them during July 1992. Another witness testified that Ybarra was not living at 6504 Longview during the summer of 1992.

Ybarra was indicted by a federal grand jury and charged with one count of felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The government filed notice of its intent to seek a sentence enhancement under 18 U.S.C. § 924(e). Ybarra waived a jury trial and was tried by the court. He was found guilty and sentenced to 235 months in prison.

STANDARDS OF REVIEW

In reviewing the sufficiency of the evidence in a bench trial, we must affirm the conviction if there is substantial evidence. United States v. Jennings, 726 F.2d 189, 190 (5th Cir.1984). “[T]he test for evidential sufficiency is whether any substantial evidence supports the finding of guilty and whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty.” United States v. Davis, 993 F.2d 62, 66 (5th Cir.1993). As an appellate court, it is not our task to weigh the evidence or determine the credibility of witnesses. Jennings, 726 F.2d at 190. We must view all evidence in the light most favorable to the government and defer to all reasonable inferences drawn by the trial court. Davis, 993 F.2d at 66. Our review is the same whether the evidence is direct or circumstantial. United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994).

In reviewing sentencing guideline cases, we review the factual findings of the district court for clear error. United States v. Washington, 44 F.3d 1271, 1280 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 2011, 131 L.Ed.2d 1010 (1995). The district court’s application of the guidelines to the findings *365 are reviewed de novo. United States v. Gaitan, 954 F.2d 1005, 1008 (5th Cir.1992).

DISCUSSION

Sufficiency of the Evidence

In order to convict one for felon in possession of a firearm, the government must prove that the defendant (1) has been convicted of a felony; (2) possessed a firearm in or affecting interstate commerce; and (3) knew that he was in possession of the firearm. United States v. Dancy, 861 F.2d 77, 81 (5th Cir.1988). At trial, Ybarra stipulated that he was a convicted felon and that the firearm was in, or affected, interstate commerce. Therefore, the only element the government had to prove was that Ybarra knowingly possessed a firearm.

Possession of the firearm may be actual or constructive. United States v. Mergerson, 4 F.3d 337, 348-49 (5th Cir.1993). Constructive possession is “ownership, dominion, or control over the contraband itself, or dominion or control over the premises in which the contraband is concealed.” United States v. Smith, 930 F.2d 1081, 1085 (5th Cir.1991) (emphasis in original). “However, mere control or dominion over the place in which contraband or an illegal item is found by itself is not enough to establish constructive possession when there is joint occupancy of a place.” Mergerson, 4 F.3d at 349 (emphasis in original).

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United States v. Ybarra, 70 F.3d 362, 1995 U.S. App. LEXIS 32686, 1995 WL 692990 (5th Cir. 1995).

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