No. 99-41005
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41005
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK EVERETT FETZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:98-CR-165-ALL
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April 26, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Mark Everett Fetz appeals his conviction by a jury and
sentence for being a convicted felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). Fetz contends that the
evidence was insufficient to show that he knowingly possessed a
handgun, and that the district court erred in determining his
sentence because it assigned criminal history points for two
prior offenses that should have been considered "related" under
the sentencing guidelines.
Because Fetz moved for a judgment of acquittal at the close
*
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that this opinion should not be published and is not precedent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. 99-41005
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of the Government's evidence and at the close of all of the
evidence, we view all of the evidence and reasonable inferences
drawn therefrom in the light most favorable to the Government and
affirm the judgment if a rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
See United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998). The Government was required to prove three elements in
order to sustain the conviction: (1) that Fetz has been convicted
of a felony; (2) that he possessed a firearm in or affecting
interstate commerce; and (3) that he knew he was in possession of
the firearm. See United States v. Dancy, 861 F.2d 77, 81 (5th
Cir. 1988). Fetz argues that the Government did not show that he
knowingly possessed a firearm. Possession of the firearm may be
actual or constructive. See United States v. Mergerson, 4 F.3d
337, 348-49 (5th Cir. 1993).
The Government adduced evidence at trial showing that a
loaded handgun was found in a box under Fetz's bed in the room he
occupied. The handgun was discovered when Fetz asked arresting
officers to retrieve his money from the box prior to taking Fetz
to jail. The testimony of the arresting officers showed that
while Fetz denied owning the gun, he told the officers that it
had been given to him to protect the property. Thus, a rational
jury could infer from the evidence that Fetz knowingly possessed
control over the gun. See United States v. DeLeon, 170 F.3d 494,
497 (5th Cir. 1999).
We review the district court’s application of the Sentencing
Guidelines de novo and its factual findings for clear error. A
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sentence will be upheld unless it was imposed in violation of
law, was an incorrect application of the sentencing guidelines,
or is outside the range of the applicable sentencing guideline.
See United States v. Hernandez-Guevara, 162 F.3d 863, 877 (5th
Cir. 1998).
Fetz argues that the district court should have treated two
prior sexual-offense sentences as related under United States
Sentencing Guidelines § 4A1.2(a)(2). Prior sentences are related
if they result from offenses that (1) occurred on the same
occasion, (2) were part of a single common scheme or plan, or (3)
were consolidated for trial or sentencing. USSG § 4A1.2,
comment. (n.3). “Although the facts surrounding the cases may be
similar, similar crimes are not necessarily related crimes. A
relatedness finding requires more than mere similarity of
crimes.” United States v. Garcia, 962 F.2d 479, 482 (5th Cir.
1992) (quotation marks, alteration, and citations omitted); see
also United States v. Mota-Aguirre, 186 F.3d 596, 600 (5th Cir.
1999). Further, the fact that two sentences were imposed on the
same day and ran concurrently is not determinative of the
question whether the two criminal cases were consolidated for
sentencing. See Mota-Aguirre, 186 F.3d at 600.
Fetz's two prior convictions involved conduct which occurred
at different times and involved different victims. Their
distinctiveness is indicated by the fact that they were
identified by separate docket numbers. The fact that the two
offenses involved similar conduct and that concurrent sentences
were imposed on the same date is insufficient, under this court’s
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jurisprudence, to indicate that the two cases were consolidated
for sentencing, nor does it show that the offenses were
necessarily part of a common scheme or plan. See Mota-Aquirre,
186 F.3d at 600. Fetz has not shown that the district court
erred in calculating his criminal history score.
AFFIRMED.