United States v. Ramirez , 351 F. App'x 964 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 4, 2009
No. 08-50994
Summary Calendar Charles R. Fulbruge III
Clerk
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.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-50994
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.
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No. 08-50994
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.
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