United States v. Antonio Ortiz, III , 670 F. App'x 214 ( 2016 )

Case: 15-41672 Document: 00513727224 Page: 1 Date Filed: 10/20/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-41672
Fifth Circuit
FILED
Summary Calendar October 20, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ANTONIO ORTIZ, III,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CR-747-1
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Antonio Ortiz, III, appeals his conviction, following a jury trial, for being
a felon in possession of a firearm. In his first ground for relief, he contends
that the district court should have suppressed evidence seized from his
girlfriend’s apartment at the time of his arrest. Although Ortiz submitted a
pretrial motion for suppression of the evidence, he did not challenge the
validity of the arrest warrant until his supplemental motion for a new trial.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-41672
The “failure to raise specific issues or arguments in pre-trial suppression
proceedings operates as a waiver of those issues or arguments for appeal.”
United States v. Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (internal
quotation marks and citation omitted); FED. R. CRIM. P. 12(b)(3)(C). Although
Ortiz has waived this claim, we review for plain error. Scroggins, 599 F.3d at
448. The question whether Ortiz’s arrest warrant was supported by a sworn
complaint establishing probable cause is a factual question that the district
court could have resolved if Ortiz had properly presented the claim; thus, he is
unable to show plain error. See United States v. Chung, 261 F.3d 536, 539 (5th
Cir. 2001).
In addition, Ortiz contends that the evidence was insufficient to support
his conviction because the Government failed to prove that he constructively
possessed the firearm. The presence of his clothing and personal items in the
bedroom where the firearm was found provides support for the conclusion that
Ortiz was living at his girlfriend’s apartment rather than merely visiting. See
United States v. Ybarra, 70 F.3d 362, 366 (5th Cir. 1995); United States v.
Onick, 889 F.2d 1425, 1430 (5th Cir. 1989). In addition, the firearm was in
plain view, supporting a plausible inference that Ortiz had knowledge of and
access to it. See United States v. Meza, 701 F.3d 411, 419, 421 (5th Cir. 2012).
Although there was some testimony indicating that Ortiz’s girlfriend also
exercised control over the firearm, possession may be joint with others. See
United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992).
Finally, Ortiz challenges the district court’s denial of his post-trial
motion for a judgment of acquittal or, alternatively, for a new trial. Ortiz
argued in his original motion that the evidence was insufficient to support his
conviction because the Government failed to prove his possession of the
firearm. In a supplemental motion, he raised his untimely challenge to the
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No. 15-41672
validity of the arrest warrant. For the reasons set forth above, Ortiz has not
shown that the district court abused its discretion by denying his original and
supplemental motions. See United States v. Franklin, 561 F.3d 398, 405 (5th
Cir. 2009). Accordingly, the judgment of the district court is AFFIRMED.
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