IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41672

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANTONIO ORTIZ, III,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:14-CR-747-1

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Antonio Ortiz, III, appeals his conviction, following a jury trial, for being 

a felon in possession of a firearm. In his first ground for relief, he contends 

that the district court should have suppressed evidence seized from his 

girlfriend’s apartment at the time of his arrest. Although Ortiz submitted a 

pretrial motion for suppression of the evidence, he did not challenge the 

validity of the arrest warrant until his supplemental motion for a new trial. 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 20, 2016

Lyle W. Cayce

Clerk

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No. 15-41672

2

The “failure to raise specific issues or arguments in pre-trial suppression 

proceedings operates as a waiver of those issues or arguments for appeal.” 

United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (internal 

quotation marks and citation omitted); FED. R. CRIM. P. 12(b)(3)(C). Although 

Ortiz has waived this claim, we review for plain error. Scroggins, 599 F.3d at 

448. The question whether Ortiz’s arrest warrant was supported by a sworn 

complaint establishing probable cause is a factual question that the district 

court could have resolved if Ortiz had properly presented the claim; thus, he is 

unable to show plain error. See United States v. Chung, 261 F.3d 536, 539 (5th 

Cir. 2001).

In addition, Ortiz contends that the evidence was insufficient to support 

his conviction because the Government failed to prove that he constructively 

possessed the firearm. The presence of his clothing and personal items in the 

bedroom where the firearm was found provides support for the conclusion that 

Ortiz was living at his girlfriend’s apartment rather than merely visiting. See

United States v. Ybarra, 70 F.3d 362, 366 (5th Cir. 1995); United States v. 

Onick, 889 F.2d 1425, 1430 (5th Cir. 1989). In addition, the firearm was in 

plain view, supporting a plausible inference that Ortiz had knowledge of and 

access to it. See United States v. Meza, 701 F.3d 411, 419, 421 (5th Cir. 2012). 

Although there was some testimony indicating that Ortiz’s girlfriend also 

exercised control over the firearm, possession may be joint with others. See

United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992).

Finally, Ortiz challenges the district court’s denial of his post-trial 

motion for a judgment of acquittal or, alternatively, for a new trial. Ortiz 

argued in his original motion that the evidence was insufficient to support his 

conviction because the Government failed to prove his possession of the 

firearm. In a supplemental motion, he raised his untimely challenge to the 

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No. 15-41672

3

validity of the arrest warrant. For the reasons set forth above, Ortiz has not 

shown that the district court abused its discretion by denying his original and 

supplemental motions. See United States v. Franklin, 561 F.3d 398, 405 (5th 

Cir. 2009). Accordingly, the judgment of the district court is AFFIRMED.

 Case: 15-41672 Document: 00513727224 Page: 3 Date Filed: 10/20/2016