United States v. Winston Duran , 579 F. App'x 270 ( 2014 )

Case: 13-50691 Document: 00512745345 Page: 1 Date Filed: 08/25/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-50691 August 25, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WINSTON ANTONIO DURAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:12-CR-2269
Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
Winston Antonio Duran pleaded guilty to conspiring to possess with
intent to distribute 50 kilograms or more of marijuana and to possessing with
intent to distribute 50 kilograms or more of marijuana, Counts 2 and 3 of the
indictment, respectively. A jury found Duran guilty of possessing a firearm in
furtherance of the drug trafficking offense charged in Count 3. The district
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-50691 Document: 00512745345 Page: 2 Date Filed: 08/25/2014
No. 13-50691
court sentenced Duran to 37 months each on the drug conspiracy and
possession counts, to be served concurrently, and to 60 months on the firearm
count, to be served consecutively to the other sentences.
Duran argues that the district court constructively amended the firearm
charge by instructing the jury it could convict him based on either the drug
conspiracy or the drug trafficking offense. In a similar vein, he argues that the
jury convicted him of two separate firearms offenses for the same conduct and
the district court imposed two five-year sentences for the same firearm
possession offense, constituting multiple convictions and multiple
punishments for the same offense in violation of the Double Jeopardy Clause.
Because Duran did not raise these arguments below, we review for plain error.
See Puckett v. United States, 556 U.S. 129, 135 (2009). Neither argument is
supported by the record.
He also argues that evidence is insufficient to support the jury conviction
and showed, at most, that the firearm was merely present in a room with a
portion of the marijuana. We look at numerous factors to determine whether
a defendant has knowingly possessed a firearm in furtherance of the specified
drug trafficking offense. 18 U.S.C. § 924(c)(1)(A); United States v. Ceballos-
Torres, 218 F.3d 409, 414 (5th Cir.), amended on other grounds, 226 F.3d 651(5th Cir. 2000). Considering those factors and viewing the evidence in the light
most favorable to the Government, we have determined that the evidence is
sufficient to support Duran’s § 924(c) conviction. See United States v. Daniels,
723 F.3d 562, 569 (5th Cir.), modified in part on reh’g, 729 F.3d 496 (5th Cir.
2013), cert. denied, 134 S. Ct. 973, 974, 975, 977 (2014).
The judgment is AFFIRMED.
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