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. 08-50994

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SAUL RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:06-CR-539-ALL

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

Saul Ramirez appeals from his judgment of conviction for one count of

possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1)

and one count of carrying a firearm during and in relation to a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1)(A). He argues that the evidence was

insufficient to support a finding of guilt on the firearm charge.

The parties correctly agree that Ramirez preserved this claim through

Rule 29 motions. See United States v. Ferguson, 211 F.3d 878, 882 (5th Cir.

United States Court of Appeals

Fifth Circuit

F I L E D

November 4, 2009

Charles R. Fulbruge III

Clerk
No. 08-50994

2

2000). Accordingly, we “must determine whether, viewing the evidence in the

light most favorable to the verdict and drawing all reasonable inferences from

the evidence in support of the verdict, a rational trier of fact could have found

that the evidence established the essential elements of the offense beyond a

reasonable doubt.” Id.

In relevant part, § 924(c)(1)(A) imposes a 5-year minimum term of

imprisonment upon a person who “during and in relation to any . . . drug

trafficking crime . . . uses or carries a firearm.” Because the indictment and jury

instructions tracked this “uses or carries” portion of § 924(c)(1)(A), Ramirez’s

arguments regarding whether he “possessed” the firearm “in furtherance of” a

drug trafficking offense are misplaced. See United States v. McGilberry, 480

F.3d 326, 328 (5th Cir. 2007) (distinguishing the evidence required to convict

under the “uses or carries” prong of § 924(c)(1)(A) from that required under the

“possesses” prong).

Ramirez’s argument that the Government failed to prove that he carried

the firearm “during and in relation to” the drug offense is unavailing. “[I]n the

context of an automobile constructive possession will support a conviction under

the ‘carrying’ prong of § 924(c)(1) when a firearm is transported in a vehicle and

the operator of the vehicle knowingly possesses the firearm in the vehicle during

and in relation to a drug trafficking crime.” United States v. Smith, 481 F.3d

259, 263 (5th Cir. 2007) (internal quotation marks and citation omitted). A gun

does not have to be within easy reach of the defendant in order to sustain a

carrying charge in the vehicular context. Id. at 264.

Ramirez claimed ownership of the drugs and firearm, both of which were

found on the passenger’s side floorboard of the car he was driving. Ramirez

admitted to a federal agent that he had “just recently purchased” the drugs. In

addition, the gun had been test fired and was found to function as designed.
No. 08-50994

3

Although there was no direct evidence that Ramirez used the gun for protection,

it “obviously could have been used for protection if [he] felt it necessary,” id.,

and, in any case, the Government only needed to show that Ramirez carried the

gun during and in relation to his possession with intent to distribute cocaine.

See id. at 263-64.

Finally, Ramirez intimates that his possession with intent to distribute

cocaine did not constitute a “drug trafficking crime” for purposes of

§ 924(c)(1)(A), but we have held otherwise. United States v. Munoz-Fabela, 896

F.2d 908, 911 (5th Cir. 1990).

AFFIRMED.