United States v. Justin Blalock

Case: 16-51014 Document: 00513977853 Page: 1 Date Filed: 05/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-51014
Fifth Circuit
FILED
Summary Calendar May 3, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JUSTIN AUBREY BLALOCK,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:15-CR-196-1
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Justin Aubrey Blalock was convicted by a jury of possession of a firearm
during the commission of a drug trafficking crime and sentenced to the
statutory minimum sentence of 60 months of imprisonment and a two-year
term of supervised release. On appeal, he argues that the evidence was
insufficient for conviction because the Government did not demonstrate that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-51014
he possessed the firearms in furtherance of the drug trafficking crime. Our
review is de novo. See United States v. Klein, 543 F.3d 206, 212 (5th Cir. 2008).
In United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.),
amended on other grounds, 226 F.3d 651 (5th Cir. 2000), we set out eight
factors which would help to demonstrate that possession of the firearm
furthered, advanced, or helped forward the drug trafficking offense. These
factors indicate that Blalock’s case is more similar to the facts in Ceballos-
Torres, where we affirmed the defendant’s conviction, than to the examples we
gave of situations which would not support conviction. See Ceballos-Torres,
218 F.3d at 415.
Blalock testified that he sold approximately one pound of marijuana per
week, that he sometimes repackaged and sold marijuana at his residence, that
he had approximately two pounds of marijuana on the day his residence was
searched, and that he feared others in the drug trade. Two loaded handguns
were immediately accessible to Blalock when he was in bed. Blalock’s
statement that he used the firearms for hunting and sport is difficult to credit,
given that the handguns, at least, were easily accessible, loaded, and not stored
in a locked cabinet or the like. See United States v. Riggins, 524 F. App’x 123,
130 (5th Cir. 2013). 1 There was no evidence that the weapons were stolen, but
Blalock’s possession of the firearms was arguably illegal based on his unlawful
use of marijuana. See 18 U.S.C. § 922(g)(3). The majority of the marijuana
and drug paraphernalia was in the vicinity, although not in the same room, as
the firearms, and a small bag of marijuana and two rolls of cash were found in
the same room as the firearms. See Ceballos-Torres, 218 F.3d at 415; United
States v. Vidales, 575 F. App’x 470, 471 (5th Cir. 2014). Finally, nothing about
1 Although an unpublished opinion issued after January 1, 1996, is not controlling
precedent, it may be considered as persuasive authority. See Ballard v. Burton, 444 F.3d
391, 401 & n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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No. 16-51014
the “time and circumstances under which the gun [was] found,” Ceballos-
Torres, 218 F.3d at 415, assists Blalock, as the firearms “were found as a result
of a search warrant based on illegal drug activity,” Riggins, 524 F. App’x at
131. On balance, these factors do not support Blalock’s position.
Blalock’s comparison to United States v. Palmer, 456 F.3d 484 (5th Cir.
2006), is inapposite, as the defendant in that case kept his firearm unloaded
and locked in a safe, while Blalock kept two loaded firearms easily accessible
in his bedside table. And although Blalock argues that he kept the handguns
for protection and for sport, “[a] jury is free to choose among reasonable
constructions of the evidence.” United States v. Garcia, 567 F.3d 721, 731 (5th
Cir. 2009) (internal quotation marks and citation omitted). Viewing the record
in the light most favorable to the Government, there was sufficient evidence
for the jury to convict Blalock. See Klein, 543 F.3d at 212.
AFFIRMED.
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