FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 10, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11580

Non-Argument Calendar

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D. C. Docket No. 07-20567-CR-AJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CORNELIUS CLARENCE LEWIS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 10, 2009)

Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

Cornelius Clarence Lewis appeals his conviction and sentence for possession

of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Lewis

contends that the district court erred in denying his motion for judgment of

acquittal based on insufficient evidence and in relying on prior convictions not

alleged in his indictment or proven to a jury to enhance his sentence. We disagree

and affirm his conviction and sentence.

I.

Upon a defendant’s motion, a district court must grant a “judgment of

acquittal of any offense for which the evidence is insufficient to sustain a

conviction.” Fed. R. Crim. P. 29(a). We review de novo the sufficiency of

evidence to support a conviction. United States v. Ortiz, 318 F.3d 1030, 1036

(11th Cir. 2003). We will affirm a conviction if “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” United

States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999) (internal quotation marks

omitted) (emphasis in original). In making this determination, we review the

evidence in the light most favorable to the government and accept all reasonable

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inferences in favor of the jury’s verdict. United States v. Chirinos, 112 F.3d 1089,

1095 (11th Cir. 1997).

We see sufficient evidence to sustain Lewis’s conviction for possession of

ammunition by a convicted felon. To convict Lewis under section 922(g)(1), the

government must show (1) he was a convicted felon, (2) he knowingly possessed

ammunition, and (3) the ammunition was part of interstate commerce. United

States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008). Lewis does not dispute that

he was a convicted felon at the time of the offense or that the pertinent ammunition

traveled in interstate commerce. Instead, he claims that the government failed to

prove that he knowingly possessed the ammunition.

We disagree. At trial, the government produced multiple witnesses who

testified that they personally observed Lewis possess the several rounds of

ammunition at issue in this case. Lewis says that the testimony is not credible

because it was riddled with inconsistencies and conflicts. But we must accept a

jury’s credibility determination unless the testimony “is incredible as a matter of

law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (internal

quotation marks omitted). And testimony is incredible only if it is “unbelievable

on its face” -- it offers “facts that [the witness] physically could not have possibly

observed or events that could not have occurred under the laws of nature.” United

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States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) (internal quotation marks

omitted). Lewis has not shown that the testimony of the government’s witnesses is

incredible as a matter of law. We, therefore, see no error in the district court’s

denial of Lewis’s motion for judgment of acquittal as to this claim.

II.

We similarly see no merit in Lewis’s contention that the district court erred

in using his prior convictions -- not listed in his indictment or proved to a jury -- to

classify him as an armed career criminal and to enhance his sentence under 18

U.S.C. § 924(e). In Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998),

the Supreme Court concluded that the government need not allege in its indictment

or prove beyond a reasonable doubt that a defendant had prior convictions for the

district court to use those convictions to enhance a sentence. Id. at 1223. Prior

precedent, therefore, bars any argument that the district court erred in sentencing

Lewis based on convictions not listed in his indictment or proved to a jury. United

States v. Wade, 458 F.3d 1273, 1278 (11th Cir. 2006).

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III.

We affirm Lewis’s conviction and sentence.

AFFIRMED.

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