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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20916 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. HULON JAMES LOUDD Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:06-CR-347-ALL
Before WIENER, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Hulon James Loudd appeals his conviction and sentence for possession of
a firearm by a convicted felon subsequent tothreeconvictionsfor a violent felony or serious drug offense. He argues that the district court abused its discretion by giving a jury instruction on constructive po ssession because there was no evidence adduced at trial to support a conviction based upon a constructive possession theory. He argues that the error was prejudicial because the case United States Court of Appeals

Fifth Circuit 

### F I L E D January 20, 2009 Charles R. Fulbruge III ClerkNo. 07-20916

2 against him was weak, as indicated by a jury’s inability to reach a verdict in his first trial. While the Government’s primary theory of the case was that Loudd had actual possession of the firearm, Loudd strongly contested this theory. The Government also produced evidence that the firearm was found next to Loudd’s driver’s license in the room in which Loudd was apprehended. This evidence,
c onstrued in the light most favorable to the Government, s ee United States v. Newell , 315 F.3d 510, 529 (5th Cir. 2002), was sufficient evidence ofconstructive possession tosupport thejury charge as it showed that Loudd had knowledge of and access to the firearm. See United States v. Fields, 72 F.3d 1200, 1212 (5th Cir. 1996). Even if the Government presented evidence of Loudd’s driver’s license in an attempt to prove actual possession as Loudd contends, this is immaterial because a constructive possession instruction is not improper if the evidence supports it, even if the Government is seeking to prove actual possession. See United States v. Munoz, 150 F.3d 401, 415-16 (5th Cir. 1998). As theevidencesupported thejury instruction on constructive possession, Loudd has not shown that the district court abused its discretion by giving the instruction. See United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003).Loudd argues that the prosecutor’s comments during closing argument
were improper and violated his due process right to a fair trial. Specifically, he asserts that the prosecutor’s comments about the types of people found in drug distribution centers and comments about the case being about neighborhood safety inflamed the passions ofthejury and invited thejury toconvict him based on bad character rather than the facts of the case. Loudd correctly concedes that because he did not object in the district court, review is for plain error only. U nited States v. Thompson, 482 F.3d 781, 785 (5th Cir. 2007). To show plain error, Loudd must show an error that is clear
or obvious and that affects his substantial rights. See United States v. Baker,No. 07-20916

3 538 F.3d 324, 332 (5th Cir. 2008), petition for cert. filed (Dec. 2, 2008) (No. 08- 7559). If Loudd makes such a showing, we have the discretion to correct the
error but will only do so if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. During closing argument, the prosecutor argued that there were only three types of people found in drug distribution centers: drug sellers; drug abusers; and protection. This commentary, however, was based upon the testimony of a police officer that Loudd was arrested in a drug distribution center and that, in his experience, therewere only three types ofpeople found in a drug distribution center. In the context of the trial, the prosecutor’s commentary can be reasonably construed as argument that thejury should drawthe conclusion that Loudd was present in the drug distribution center to provide protection, a role in which he would be more likely to possess a firearm. Accordingly, this commentary was permissible argument about the conclusions the jury should draw from the evidence. See United States v. Thompson, 482 F.3d 781, 785-86 (5th Cir. 2007). The prosecutor also commented during closing argument that the case was about cleaning up theseveredrug problem in poor neighborhoods where children live. This commentary was tenuously based upon evidence presented at trial and amounted to a call for thejury to stand up to pervasive crime that this court has previous noted that it “would not recommend

. . . as a model for prosecutors.” United States v. Carter, 953 F.2d 1449, 1461 (5th Cir. 1992). Nevertheless, the majority of the prosecutor’s closing argument was devoted to a discussion ofthe elements of the crime and the conclusions that the prosecutor thought that the jury should drawfrom the evidence that was presented. Thus, if the challenged commentary “did go beyond the proper limits ofa plea for lawenforcement or an appeal to the jury to act as the conscience of the community, it did not do so egregiously.” I d. (internal quotation marks and citations omitted). Accordingly,No. 07-20916

4 Loudd has not shown that the prosecutor’s comments amounted to plain error. See id. Loudd argues that the application ofthe sentence enhancement under 18 U.S.C. § 924(e)(1) was unconstitutional pursuant toApprendi v. NewJersey, 530 U.S. 466, 490 (2000). This argument, as Loudd concedes, is foreclosed. See United States v. White , 465 F.3d 250, 254 (5th Cir. 2006). AFFIRMED.