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. 09-50624

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

WILLIE ISRAEL NAVARETTE,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:09-CR-11-1

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

Willie Israel Navarette appeals his felon-in-possession-of-a-firearm

conviction under 18 U.S.C. § 922(g)(1). He claims the district court should have

granted his motion for a judgment of acquittal under Federal Rule of Criminal

Procedure 29.

Under § 922(g)(1), the Government must show: the defendant was

previously convicted of a felony; he possessed a firearm; and, the firearm

traveled in, or affected, interstate commerce. E.g., United States v. Daugherty,

United States Court of Appeals

Fifth Circuit

F I L E D

April 19, 2010

Lyle W. Cayce

Clerk

Case: 09-50624 Document: 00511084552 Page: 1 Date Filed: 04/19/2010
No. 09-50624

2

264 F.3d 513, 515 (5th Cir. 2001). Possession can be actual or constructive and

may be proven by circumstantial evidence. E.g., United States v. De Leon, 170

F.3d 494, 496 (5th Cir. 1999) (citing United States v. Jones, 133 F.3d 358, 362

(5th Cir. 1988). Navarette having properly moved for judgment of acquittal

under Rule 29, our court must consider, de novo, “whether, viewing the evidence

in the light most favorable to the government, a rational trier of fact could have

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

States v. Greer, 137 F.3d 247, 249 (5th Cir. 1998) (citing United States v. Bell,

678 F.2d 547, 549 (5th Cir.1982) (en banc), aff’d, 462 U.S. 356 (1983)).

Navarette did not present evidence at trial. He stipulated: he had been

convicted previously of a felony; and, the firearms in question had traveled in

or affected interstate commerce. He contends the Government failed to show

he possessed either the .22 or .45 caliber firearm listed in the indictment.

Officers testified they recovered the .45 caliber pistol from under

Navarette’s mattress, as well as a .45 caliber bullet from inside a box in his

closet; the box also contained marijuana. Navarette admitted the marijuana was

his. When an Officer stated there was no firearm inside that box, Navarette

asked his girlfriend where his gun was. Boxes of bullets found in the same closet

were the same caliber (.22) as the pistol found in Navarette’s father’s closet.

Viewing this evidence in the requisite light most favorable to the Government,

a rational trier of fact could have found, beyond a reasonable doubt, that

Navarette possessed either firearm. See Greer, 137 F.3d at 249. Even assuming

the motion for judgment of acquittal should have been granted for the .22 caliber

firearm, the conviction still stands because a reasonable juror could have

convicted based on the .45 caliber firearm. 

AFFIRMED.

Case: 09-50624 Document: 00511084552 Page: 2 Date Filed: 04/19/2010