IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10176 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD CARLDERON SMITH, JR., also known as Richard Calderon Smith,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 4:00-CR-135-1 - - - - - - - - - - October 26, 2001

Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:1

Richard Carlderon Smith, Jr., appeals from the jury conviction

of being a felon in possession of a firearm. Smith argues that the

district court erred in denying his motion for a judgment of

acquittal pursuant to Fed. R. Crim. P. 29(c) because the evidence

was insufficient to prove beyond a reasonable doubt that he

possessed the firearm, either directly or constructively.

This court reviews the denial of a motion for a judgment of

acquittal de novo. United States v. Garcia,

(5th

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Cir. 2001). The court “views all evidence, whether circumstantial

or direct, in the light most favorable to the Government with all

reasonable inferences to be made in support of the jury’s verdict.”

United States v. Moser,

(5th Cir. 1997). The

court does not review the weight of the evidence or the credibility

of the witnesses. Garcia,

.

Possession of a firearm may be actual or constructive and may

be proven by circumstantial evidence. United States v. De Leon,

(5th Cir. 1999). Where a premises is jointly

occupied, there must be “some evidence supporting at least a

plausible inference that the defendant had knowledge of and access

to the weapon or contraband.” United States v. Mergerson,

(5th Cir. 1993).

The jury could have rationally believed that Larine Mojica’s

statements to the officers that Smith was going for the gun and

that the smock belonged to Smith were more credible than her trial

testimony given the trial testimony that the smock would not fit

her, Smith was in the bedroom and very close to the closet, the

closet door was partially open, the clothes in the closet were

parted at the smock, and the handle of the gun was protruding from

the pocket of the smock. Accordingly, the judgment of the district

court is AFFIRMED.

2