* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 28, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20974

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

KENNETH LINCOLN MARTIN,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CR-7-ALL

--------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM: *

A jury found Plaintiff-Appellant Kenneth Lincoln Martin guilty

of (1) two counts of possession of a firearm by a convicted felon,

(2) two counts of possession of a firearm in furtherance of a drug

trafficking crime, and (3) two counts of possession with the intent

to distribute phencyclidine. The district court issued a judgment

of acquittal on counts two and six of the indictment, the charges

of possession of a firearm in furtherance of a drug trafficking2

crime. The government appeals the judgment of acquittal issued by

the district court.

We review de novo a judgment of acquittal issued by a district

court, applying the same standard in reviewing the judgment as that

applicable in the district court. U nited States v. Deville

, 278

F.3d 500 ( 5th Cir. 2002). A motion for judgment of acquittal

should only be granted when, viewing the evidence in a light most

favorable to the government, no reasonable fact finder could find

the evidence sufficient to support the jury’s verdict. Id.

The district court ruled that the evidence in count two was

insufficient to support the finding that Martin possessed the

firearmin question in furtherance of a drug trafficking crime.

With regard to count six, the court concluded that the evidence was

insufficient to establish the crime of distribution and therefore

Martin could not have possessed the firearm in furtherance of a

drug trafficking crime.

In United States v. Ceballos-Torre s , 218 F.3d 409 (5th Cir.

2000), we established a multi-factor test for determining whether

possession of a firearm is “in furtherance” of a drug trafficking

crime. These factors include (1) the type of drug activity, (2)

accessibility of the firearm, (3) the type of weapon, (4) whether

the weapon is stolen, (5) the status of possession (legitimate or

illegal), (6) whether the gun is loaded, (7) proximity to drugs or

drug profits, and (8) the time and circumstances under which the

gun is found. Id. at 414-15.3

In both of the counts at issue, Martin had easy access to the

firearms. They were found in close proximity to the phencyclidine.

As Martin w as a convicted felon, the firearms were possessed

illegally. All of the firearms were loaded at the time they were

seized. Employing the factors and analysis from Ceballos-Torres

,

we conclude that the district court erred in holding that the

evidence was insufficient to support the finding that Marti n was

possessing the fi rearms “in furtherance” of a drug-trafficking

crime.

Additionally, the district court erred in granting the

judgment of acquittal on the ground that Martin was not engaged in

a “drug-trafficking crime.” According to the district court, the

evidence did not support the crime of distribution; however, Martin

was charged, tried, and convicted of possession with the intent to

distribute phencyclidine. The government was not required to prove

that Martin actually distributed the phencyclidine. Rather, the

government’s bu rden was to prove that Martin possessed the

phencycli dine with the intent to distribute it. Possession with

intent to distribute is a predicate drug traffickin g offense for

purposes of 18 U.S.C. § 924(c). U nited States v. Munoz-Fabela

, 896

F.2d 908, 911 (5th Cir. 1990). Accordingly, the judgment of

acquittal on counts two and six i s vacated, and the case is

remanded for reinstatement of t he jury’s verdict and further

consistent proceedings.

VACATED and REMANDED.