[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 10, 2009
No. 08-11580 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20567-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORNELIUS CLARENCE LEWIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 10, 2009)
Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Cornelius Clarence Lewis appeals his conviction and sentence for possession
of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Lewis
contends that the district court erred in denying his motion for judgment of
acquittal based on insufficient evidence and in relying on prior convictions not
alleged in his indictment or proven to a jury to enhance his sentence. We disagree
and affirm his conviction and sentence.
I.
Upon a defendant’s motion, a district court must grant a “judgment of
acquittal of any offense for which the evidence is insufficient to sustain a
conviction.” Fed. R. Crim. P. 29(a). We review de novo the sufficiency of
evidence to support a conviction. United States v. Ortiz, 318 F.3d 1030, 1036
(11th Cir. 2003). We will affirm a conviction if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” United
States v. Hunt, 187 F.3d 1269, 1270 (11th Cir. 1999) (internal quotation marks
omitted) (emphasis in original). In making this determination, we review the
evidence in the light most favorable to the government and accept all reasonable
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inferences in favor of the jury’s verdict. United States v. Chirinos, 112 F.3d 1089,
1095 (11th Cir. 1997).
We see sufficient evidence to sustain Lewis’s conviction for possession of
ammunition by a convicted felon. To convict Lewis under section 922(g)(1), the
government must show (1) he was a convicted felon, (2) he knowingly possessed
ammunition, and (3) the ammunition was part of interstate commerce. United
States v. Palma, 511 F.3d 1311, 1315 (11th Cir. 2008). Lewis does not dispute that
he was a convicted felon at the time of the offense or that the pertinent ammunition
traveled in interstate commerce. Instead, he claims that the government failed to
prove that he knowingly possessed the ammunition.
We disagree. At trial, the government produced multiple witnesses who
testified that they personally observed Lewis possess the several rounds of
ammunition at issue in this case. Lewis says that the testimony is not credible
because it was riddled with inconsistencies and conflicts. But we must accept a
jury’s credibility determination unless the testimony “is incredible as a matter of
law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (internal
quotation marks omitted). And testimony is incredible only if it is “unbelievable
on its face” -- it offers “facts that [the witness] physically could not have possibly
observed or events that could not have occurred under the laws of nature.” United
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States v. Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) (internal quotation marks
omitted). Lewis has not shown that the testimony of the government’s witnesses is
incredible as a matter of law. We, therefore, see no error in the district court’s
denial of Lewis’s motion for judgment of acquittal as to this claim.
II.
We similarly see no merit in Lewis’s contention that the district court erred
in using his prior convictions -- not listed in his indictment or proved to a jury -- to
classify him as an armed career criminal and to enhance his sentence under 18
U.S.C. § 924(e). In Almendarez-Torres v. United States, 118 S. Ct. 1219 (1998),
the Supreme Court concluded that the government need not allege in its indictment
or prove beyond a reasonable doubt that a defendant had prior convictions for the
district court to use those convictions to enhance a sentence. Id. at 1223. Prior
precedent, therefore, bars any argument that the district court erred in sentencing
Lewis based on convictions not listed in his indictment or proved to a jury. United
States v. Wade, 458 F.3d 1273, 1278 (11th Cir. 2006).
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III.
We affirm Lewis’s conviction and sentence.
AFFIRMED.
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