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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50400

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NICHOLAS MOLINA,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:08-CR-217-1

Before JOLLY, WIENER, and ELROD, Circuit Judges. 

PER CURIAM:*

Nicholas Molina appeals his conviction after a jury trial of possession of

a firearm in furtherance of a drug trafficking crime, namely, manufacturing

marijuana, in violation of 18 U.S.C. § 924(c)(1)(A). Molina argues that the

Government failed to prove he possessed the firearm in furtherance of the drug

crime.

Because Molina preserved his challenge to the sufficiency of the evidence,

we review the sufficiency of the evidence de novo. See United States v. Mitchell,

United States Court of Appeals

Fifth Circuit

F I L E D

January 27, 2010

Charles R. Fulbruge III

Clerk

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No. 09-50400

2

484 F.3d 762, 768 (5th Cir. 2007). We view the evidence in the light most

favorable to the verdict to determine whether a rational jury could have found

Molina guilty beyond a reasonable doubt. See id. In weighing the evidence, the

jurors may properly “use their common sense” and “evaluate the facts in light of

their knowledge of the natural tendencies and inclinations of human beings.”

United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (internal quotation marks

and citation omitted). 

Molina contends there was insufficient evidence that the firearm served

to further marijuana manufacturing because its location next to his bed is

consistent with possession for personal protection. Molina also contends that he

grew the plants for personal consumption and thus had no need to protect the

plants. He told officers that he possessed the pistol for “protection from robbers.”

We have set forth a non-exhaustive list factors to determine whether

possession furthers, advances, or helps forward a drug trafficking offense, which

includes: 

the type of drug activity that is being conducted, accessibility of the

firearm, the type of the weapon, whether the weapon is stolen, the

status of the possession (legitimate or illegal), whether the gun is

loaded, proximity to drugs or drug profits, and the time and

circumstances under which the gun is found. 

United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.), amended in

part, 226 F.3d 651 (5th Cir. 2000). The pistol was located next to the bed where

Molina slept along with a loaded magazine and a holster, which were all readily

accessible and in plain view. The pistol was in the same trailer as several of the

marijuana plants. The officers discovered bagged marijuana and $460 in cash

next to the pistol. In addition, the officers found a stun gun and a shotgun inside

a safe in the bedroom closet and another firearm in the kitchen. The presence

of the other weapons suggests that Molina possessed the pistol as part of a larger

cache of weapons for the purpose of protecting the plants. The officers also

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discovered a bullet proof vest inside the closet, which provides further evidence

that the pistol was one of the means Molina used to protect the plants. 

The jury was free to choose among any reasonable construction of the

evidence, United States v. Clark, 577 F.3d 273, 284 (5th Cir.), cert denied 78

U.S.L.W. 3340 (U.S. Dec. 7, 2009) (No. 09-7224), and the foregoing evidence

forms a sufficient basis for a rational juror to conclude that Molina possessed the

pistol to protect the plants and thus possessed the pistol in furtherance of

marijuana manufacturing. See Ceballos-Torres, 218 F.3d at 415.

The district court’s judgment is AFFIRMED.

Case: 09-50400 Document: 00511013966 Page: 3 Date Filed: 01/27/2010