IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-51045

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANDRES AGUIRRE JAIMES,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:09-CR-50-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Andres Aguirre Jaimes appeals his jury trial conviction of possession of

firearms in furtherance of a drug trafficking crime, namely, distributing powder

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

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

trafficking crime.

Because Jaimes 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

October 20, 2010

Lyle W. Cayce

Clerk

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.

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484 F.3d 762, 768 (5th Cir. 2007). We will uphold the jury’s verdict if a

reasonable trier of fact could conclude from the evidence that the elements of the

offense were established beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 319 (1979). We review the evidence, both direct and

circumstantial, as well as all reasonable inferences from that evidence, in the

light most favorable to the verdict. See United States v. Rose, 587 F.3d 695, 702

(5th Cir. 2009), cert. denied, 130 S. Ct. 1915 (2010). Moreover, we determine

only whether the jury made a rational decision, not whether its verdict was

correct on the issue of guilt or innocence. See United States v. Dean, 59 F.3d

1479, 1484 (5th Cir. 1995).

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

possession of a firearm furthers, advances, or helps forward a drug trafficking

offense, which includes (1) the type of drug activity, (2) the type of firearm, (3)

the accessibility of the firearm, (4) the proximity of the firearm to drugs or drug

profits, (5) whether the firearm was loaded, (6) whether the firearm was stolen,

(7) whether the firearm was possessed legally or illegally, and (8) the time and

circumstances under which the firearm was found. United States v. CeballosTorres, 218 F.3d 409, 414-15 (5th Cir.), amended in part on other grounds, 226

F.3d 651 (5th Cir. 2000). Jaimes disputes that his possession of the firearms

was “in furtherance of” his cocaine trafficking activities. He contends that he did

not possess the ammunition necessary to operate the firearms listed in the

indictment against him, that he did not carry or display the firearms during the

cocaine transactions, and that he did not barter guns for drugs. Even if all of

Jaimes’s contentions are true, they are not enough to establish that the evidence

was insufficient as a matter of law to convict him of possessing a firearm in

furtherance of a drug trafficking offense.

Jaimes admitted that he engaged in a drug trafficking offense when he

distributed powder cocaine. There was testimony regarding the dangerous

nature of drug trafficking, including testimony that one of Jaimes’s cocaine

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suppliers had been murdered when someone threw a hand grenade into his car.

Jaimes possessed three different firearms—a handgun, a revolver, and an

assault-style shotgun—all of which were located in Jaimes’s bedroom closet.

Thus, the firearms were readily accessible to Jaimes. The firearms were located

in close proximity to a bag containing 140 grams of cocaine, other cocaine

stashes, cocaine packing materials, a box of .25 caliber auto shells, ammunition

for a Luger 9mm pistol, a BB gun with ammunition, digital scales, currency, and

drug ledgers, found in Jaimes’s bedroom, bedroom closet, and hall closet. There

was testimony that drug traffickers commonly possess firearms for purposes of

protection, security, and intimidation and that drug traffickers frequently

conceal their firearms during drug transactions. There was also testimony that

law enforcement officers frequently recover mismatched firearms and

ammunition because of the nature of the drug trafficking industry, which often

involves bartering guns for drugs.

“The fact that a firearm is ‘unloaded’ or ‘inoperable’ does not insulate the

defendant from the reach of section 924(c).” United States v. Coburn, 876 F.2d

372, 375 (5th Cir. 1989). “As the Supreme Court has recognized, an unloaded

firearm is a dangerous weapon capable of provoking a violent response.” Id.

(citing McLaughlin v. United States, 476 U.S. 16, 18 (1986)).

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

evidence. See Mitchell, 484 F.3d at 768. Moreover, “[i]t is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt.” Id. The foregoing

evidence forms a sufficient basis for a rational juror to conclude that Jaimes

possessed firearms in furtherance of cocaine trafficking. See Ceballos-Torres,

218 F.3d at 415.

The district court’s judgment is AFFIRMED.

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