United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 24, 2006
Charles R. Fulbruge III
Clerk
No. 05-51298
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY LAMAR EVANS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-19-1
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Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
A jury convicted Larry Lamar Evans of possession with intent
to distribute crack cocaine within 1,000 feet of a school,
possession of a firearm (namely, a 9mm machine gun) in
furtherance of a drug trafficking crime, and two counts of being
a felon in possession of a firearm. The district court sentenced
Evans to 120 months of imprisonment and three years of supervised
release on the felon-in-possession charges, 292 months of
imprisonment and a six-year term of supervised release on the
drug trafficking offense, and 360 months of imprisonment and a
*
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this opinion should not be published and is not precedent except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. 05-51298
-2-
three-year term of supervised release on the charge of possessing
a firearm in furtherance of a drug trafficking crime. The
district court also imposed a $1,000 fine on each of the four
counts of conviction.
Evans argues that the evidence at trial was insufficient to
support his conviction for possession of a firearm in furtherance
of a drug trafficking offense. Evans illegally possessed a 9mm
machine gun that was in an unlocked bag along with a loaded
magazine and extra hollow point bullets. The firearm was easily
accessible on a closet shelf located approximately 12 to 13 feet
away from the crack cocaine and cash found in Evans’ home. The
gun was discovered during a search of Evans’ home incident to an
ongoing drug investigation. Further, there was testimony at
trial that Evans took the machine gun with him on drug runs and
intended to exchange the machine gun for more narcotics. Viewing
this evidence in the light most favorable to the Government, as
we must, see United States v. Gourley, 168 F.3d 165, 168-69 (5th
Cir. 1999), we hold that the evidence was sufficient to show that
the machine gun was possessed in furtherance of a drug
trafficking offense. See United States v. Ceballos-Torres, 218
F.3d 409, 414-15 (5th Cir. 2000).
Evans challenges the district court’s instruction that the
element of being a felon had been proven by Evans’s stipulation.
The stipulation relieved the Government of its burden to prove
that Evans was a felon at the time he possessed the firearms in
No. 05-51298
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question. See United States v. Branch, 46 F.3d 440, 442 (5th
Cir. 1995). Accordingly, the district court did not err in
instructing the jury in this regard. See United States v. Pompa,
434 F.3d 800, 805 (5th Cir. 2005).
Evans also contends that the district court relied on a
trial witness’s unreliable trial testimony in determining the
quantity of drugs attributable to him as relevant conduct. That
witness’s testimony was corroborated by other evidence adduced at
trial. The district court did not clearly err in determining
drug quantity. See United States v. Villanueva, 408 F.3d 193,
203 n.9 (5th Cir.), cert. denied, 126 S. Ct. 268 (2005); United
States v. Shipley, 963 F.2d 56, 58 (5th Cir. 1992). Evans has
not carried his burden of showing that the witness’s statements
were materially untrue and, thus, unreliable. See United States
v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
The judgment of the district court is AFFIRMED.