United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 28, 2005
Charles R. Fulbruge III
Clerk
No. 04-20974
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KENNETH LINCOLN MARTIN,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-7-ALL
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
A jury found Plaintiff-Appellant Kenneth Lincoln Martin guilty
of (1) two counts of possession of a firearm by a convicted felon,
(2) two counts of possession of a firearm in furtherance of a drug
trafficking crime, and (3) two counts of possession with the intent
to distribute phencyclidine. The district court issued a judgment
of acquittal on counts two and six of the indictment, the charges
of possession of a firearm in furtherance of a drug trafficking
*
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this opinion should not be published and is not precedent except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.
crime. The government appeals the judgment of acquittal issued by
the district court.
We review de novo a judgment of acquittal issued by a district
court, applying the same standard in reviewing the judgment as that
applicable in the district court. United States v. Deville, 278
F.3d 500 (5th Cir. 2002). A motion for judgment of acquittal
should only be granted when, viewing the evidence in a light most
favorable to the government, no reasonable fact finder could find
the evidence sufficient to support the jury’s verdict. Id.
The district court ruled that the evidence in count two was
insufficient to support the finding that Martin possessed the
firearm in question in furtherance of a drug trafficking crime.
With regard to count six, the court concluded that the evidence was
insufficient to establish the crime of distribution and therefore
Martin could not have possessed the firearm in furtherance of a
drug trafficking crime.
In United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir.
2000), we established a multi-factor test for determining whether
possession of a firearm is “in furtherance” of a drug trafficking
crime. These factors include (1) the type of drug activity, (2)
accessibility of the firearm, (3) the type of weapon, (4) whether
the weapon is stolen, (5) the status of possession (legitimate or
illegal), (6) whether the gun is loaded, (7) proximity to drugs or
drug profits, and (8) the time and circumstances under which the
gun is found. Id. at 414-15.
2
In both of the counts at issue, Martin had easy access to the
firearms. They were found in close proximity to the phencyclidine.
As Martin was a convicted felon, the firearms were possessed
illegally. All of the firearms were loaded at the time they were
seized. Employing the factors and analysis from Ceballos-Torres,
we conclude that the district court erred in holding that the
evidence was insufficient to support the finding that Martin was
possessing the firearms “in furtherance” of a drug-trafficking
crime.
Additionally, the district court erred in granting the
judgment of acquittal on the ground that Martin was not engaged in
a “drug-trafficking crime.” According to the district court, the
evidence did not support the crime of distribution; however, Martin
was charged, tried, and convicted of possession with the intent to
distribute phencyclidine. The government was not required to prove
that Martin actually distributed the phencyclidine. Rather, the
government’s burden was to prove that Martin possessed the
phencyclidine with the intent to distribute it. Possession with
intent to distribute is a predicate drug trafficking offense for
purposes of 18 U.S.C. § 924(c). United States v. Munoz-Fabela, 896
F.2d 908, 911 (5th Cir. 1990). Accordingly, the judgment of
acquittal on counts two and six is vacated, and the case is
remanded for reinstatement of the jury’s verdict and further
consistent proceedings.
VACATED and REMANDED.
3