* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 29, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT LEE HERNANDEZ, SR., Defendant - Appellant. No. 04-1276 (D.C. No. 03-CR-312-RB) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , McKAY and HENRY , Circuit Judges.
Robert Lee Hernandez, Sr., (“Defendant”) was convic ted by a jury of one count of possession of a firearm by a felon, in vio lation of 18 U.S.C. § 922(g); one count of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841; and one count of possession of a fire arm in furtherance of a drug crime, in violation of 18 U.S.C. § 924(c). On appe al, Defendant raises a single- 2 -

issue: whether the evidence presented at trial was sufficient to prove his guilt beyond a reasonable doubt. Taking jurisdiction und er 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM Defendant’s convictions.

I. Background In May 2003, an investigation conducted by the Nort h Metro Drug Task Force revealed that two individuals, Juan Hernandez and Nicholas Rueda, were allegedly selling marijuana from a residence at 602 5 Monaco Street in Commerce City, Colorado. Based on the information discovere d during their investigation, the officers applied for and received a warrant to search the premises at 6025 Monaco Street for evidence of illegal drugs, which they executed shortly thereafter. Upon entering the home, officers discovered a numbe r of teenagers in the living room, who quickly scattered upon seeing the police. While conducting a safety sweep for additional occupants, officers dis covered an adult male (later discovered to be Defendant) alone in the northeast bedroom. Also discovered in the bedroom were approximately 321 grams of marijua na, a digital scale, and small plastic bags. In addition, officers found a 12-gauge shotgun and a .38- caliber revolver hidden under a mattress as well as shotgun ammunition. During a- 3 -

search of the basement of the house, officers found a black duffle bag containing approximately 15 pounds of marijuana in a closet. After the search, Defendant was placed under arrestand taken to a holding cell, where he was read his rights under Miranda v. Arizona , 384 U.S. 436 (1966). Afterwards, Defendant gave a statement to Detective Tyrone Streno of the Commerce City Police. During his interview, Defend ant admitted to knowingly possessing the firearms as well as the marijuana fo und in the bedroom. When asked about the large quantity of marijuana found i n a duffle bag in the basement, Defendant initially denied having any knowledge of the bag. However, in response to continued questioning, Defendant admitt ed that the bag was his but disputed the amount of marijuana discovered in the bag. Defendant also admitted that he had recently moved in to the house at 6025 Monaco Street following a burglary at his former home. The Federal Grand Jury for the District of Colorado returned a three-count indictment against Defendant, charging him with pos session of a firearm by a felon, possession of marijuana with intent to distr ibute, and possession of a firearm in furtherance of a drug crime. Defendant sought to suppress his statements to police, citing lack of voluntariness and failure of police to comply1 The record also indicates that Defendant moved to s uppress the physical

evidence seized during the search on Fourth Amendme nt grounds. The district court denied this motion and Defendant has not appe aled that ruling. - 4 - with Miranda

. 1 The court denied the motion, and after a four-day trial, the jury returned guilty verdicts on each of the three count s in the indictment. The district court sentenced Defendant to 40 months in prison oneach of the first two counts of the indictment (possession of a firearm by a fel on and possession of marijuana with intent to distribute), terms to run concurrent ly. On the third count, the district court sentenced Defendant to 60 months in prison, to be served consecutively to the sentences imposed for the firs t two counts.

II. Discussion The question of whether the evidence presented at t rial was sufficient to support a conviction is reviewed de novo . United States v. Ivy , 83 F.3d 1266, 1284 (10th Cir. 1996.) The precise issue before us is whether, taking the evidence—both direct and circum stantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reaso nable jury could find the defendant guilty beyond a reasonable doubt . In order to conclude the evidence was insufficient, as a matterof law, to support a conviction, we must find that no reasonable jurorcould have reached the disputed verdict.- 5 -

Id. Having carefully reviewed the parties’ briefs and the record before this court, we conclude that the evidence presented to the jury at trial was sufficient to support a guilty verdict on each count of the indic tment. A. Count I: Possession of a firearm by a felon In order to support a conviction under 18 U.S.C. § 922(g), the Government must show: (1) the defendant was convicted of a fel ony; (2) the defendant thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce. United States v. Capps , 77 F.3d 350, 352 (10th Cir. 1996). On appeal, Defendant does not challeng e the Government’s ability to prove the first and third prongs of the offense; rather, Defendant argues that the Government could not prove he had possession of the firearms recovered during the search. We disagree. The record clearly indicates that Defendant admitte d to police officers that (1) the items found under the mattress were firearm s; and (2) the firearms belonged to Defendant. And while Defendant was notphysically holding the firearms when he was apprehended, he constructivelypossessed the guns for the purposes of 18 U.S.C. § 922(g). See United States v. Mills , 29 F.3d 545, 549 (10th Cir. 1994) (noting that constructive possessi on is sufficient to support a conviction under 18 U.S.C. § 922(g)). A person con structively possesses a firearm when he has “ownership, dominion or control ” over the object and the- 6 -

premises where it is found. Id. Here, the firearms were found hidden under a mattress in the very same room where Defendant was apprehended. This fact, plus Defendant’s own admission that firearms belong ed to him, was sufficient for a reasonable jury to find this defendant guilty bey ond a reasonable doubt. B. Count II: Possession of marijuana with intent to distribute In order to meet its burden of proof under this cou nt of the indictment, the Government must show: (1) that Defendant knowingly possessed marijuana; and (2) that he possessed the marijuana with the specif ic intent to distribute it. See United States v. Carter , 130 F.3d 1432, 1440 (10th Cir. 1997). As with th e felonin-possession charge, Defendant only challenges the Government’s ability to prove the possession prong of the offense; he concedes that it would be reasonable for the jury to infer an intent to distr ibute if possession were indeed shown. Defendant’s main contention is that there was insuf ficient evidence to link him to the black bag found in the basement of the r esidence, in which the majority of the marijuana (some 15 pounds) was found. In support of this argument, Defendant points to the fact that there was no phys ical evidence linking him to the bag, nor was there any documentary evidence ind icating that he actually resided at 6025 Monaco Street. Defendant also poin ts out inconsistencies in the- 7 -

testimony relating to his confession and other fact ors regarding his interview with police which he argues could cast some doubt on the reliability of that confession. But Defendant’s points are better suited for a summ ation to a jury then they are for consideration by this court on appeal. It is exclusively the province of the jury to determine the credibility of witnesses, the weight to be accorded to the evidence presented, the reasonable inferences to be drawn therefrom, and the conclusions to be reached. United States v. McKiss ick , 204 F.3d 1282, 1289-90 (10th Cir. 2000). While Defendant points to the st rongest evidentiary points in favor of an acquittal, the record reveals ample evi dence to support a conviction. That the jury chose to believe one type of evidence over the other is a decision within its sole decision and not subject to review by this court. See id. at 1289. With regard to the marijuana found in the basement, the most compelling piece of evidence is Defendant’s own admission thatthe bag in which the marijuana was found belonged to him. Furthermore, Defendant was the only adult found in the house during the raid and was found ina room containing items such as plastic bags and a digital scale—items used for measuring and packaging drugs. Finally, Defendant admitted during his inte rview that “we” sell marijuana, typically in amounts sold for $20. These pieces of evidence lend ample support to a co nclusion that the drugs discovered in the basement were in the constructive possession of Defendant. See- 8 -

United States v. Wilson , 107 F.3d 774, 778 (10th Cir. 1997) (noting that constructive possession, which is sufficient to sup port a conviction under 21 U.S.C. §841, occurs when a person knowingly has own ership, dominion or control over the narcotics and the premises where the narco tics are found.) A jury could reasonably infer that Defendant took marijuana from the bag in the basement to his bedroom, packaged individual portions using the equipment found there, and then sold the drugs to the public. Thus, we conclu de that the evidence presented at trial was sufficient to support Defendant’s conv iction under this charge of the indictment.
C. Count III: Possession of a firearm in furtherance of a drug

crime Defendant argues that even if the Government could prove that Defendant possessed the firearms seized during the search of the residence, the evidence at trial was insufficient to show that the firearms we re possessed “in furtherance” of a drug crime, as is required by 18 U.S.C. § 924(c). (Aplt. Br. at 19.) We have recognized several factors helpful in analyzing whe ther a firearm was possessed in furtherance of a drug trafficking offense, inclu ding “the type of drug activity being conducted, the accessibility of the firearm, the type of firearm, the legal status of the firearm, whether the firearm is loade d, the proximity of the firearm to the drugs or drug profits, and the time and circ umstances under which the firearm is found.” United States v. Basham , 268 F.3d 1199, 1208 (10th Cir.- 9 -

2001). Although “mere possession of a firearm in p roximity to drugs” does not require a finding that a weapon was possessed in fu rtherance of drug trafficking, it could be considered by the jury along with othercircumstantial evidence to determine whether the defendant intended to possess the weapon “in furtherance of” drug trafficking. Basham , 268 F.3d at 1208. Here, it is compelling that the firearms were found in very close proximity to 321 grams of marijuana. In addition, the area i n question contained a digital scale and plastic bags used for measuring and packa ging drugs. Finally, the evidence reveals that the firearms were hidden unde r a mattress and easily accessible to Defendant. These facts provide ample evidence upon which the jury could have rested its verdict.

III. Conclusion Viewing the evidence in the record in the light mos t favorable to the Government, we are unable to conclude that no reaso nable juror could have reached the disputed verdict. Ivy , 83 F.3d at 1284. Because the evidence presented at trial was sufficient to support the ju ry’s verdict, we AFFIRM Defendant’s conviction on all counts.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge