United States v. Rowell ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20731
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEWIS ROWELL,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CR-318-ALL
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July 21, 2000
Before JOLLY, SMITH and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Lewis Rowell was convicted by a jury of possession of
a firearm by a felon and making a false statement to a firearms
dealer in violation of 18 U.S.C. §§ 922(a)(6) and (g). He
challenges the sufficiency of the evidence to find him guilty on
the felon-in-possession charge. He also challenges the district
court's decision to resentence him pursuant to Fed. R. Crim. P.
35(c).
*
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that this opinion should not be published and is not precedent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. 99-20731
-2-
A reasonable jury could have inferred from the evidence that
Rowell knowingly had actual or constructive possession of
firearms and was guilty beyond a reasonable doubt of the charged
offense. See United States v. Ortega Reyna, 148 F.3d 540, 543
(5th Cir. 1998); United States v. Jones, 133 F.3d 358, 362 (5th
Cir.), cert. denied, 118 S. Ct. 1854 (1998) (possession may be
actual or constructive and may be proved by circumstantial
evidence).
A district court's ruling under Rule 35 will be reversed
"'only for illegality or gross abuse of discretion.'" United
States v. Lewis, 743 F.2d 1127, 1129 (5th Cir. 1984) (citation
omitted). The district court resentenced Rowell because the
original sentences were based on an error in the sentencing
guideline range as stated in the presentence report. The
correction of the sentencing error was within the authority of
the district court because the sentence in the original written
judgment reflected an "obvious error or mistake" that "would
almost certainly [have resulted] in a remand of the case." Fed.
R. Crim. P. 35 advisory committee's note. The sentences imposed
are not illegal and do not reflect an abuse of the district
court's discretion.
AFFIRMED.