United States of America v. Hermengildo Echevarria, Jr

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3783
UNITED STATES OF AMERICA
v.
HERMENGILDO ECHEVARRIA, JR.,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 02-cr-00323)
District Judge: Honorable Bruce W. Kauffman
Submitted Under Third Circuit LAR 34.1(a)
October 28, 2004
Before: NYGAARD, AMBRO, and GARTH, Circuit Judges
(filed: March 30, 2005 )
OPINION
AMBRO, Circuit Judge
Appellant Hermengildo Echevarria, Jr. appeals his conviction and sentence. For
the reasons that follow, we affirm his conviction. However, in light of United States v.
Booker, 543 U.S. ----, 125 S.Ct. 738 (2005), we vacate his sentence and remand for

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resentencing.
The District Court had jurisdiction under 18 U.S.C. § 3231. Our Court has
jurisdiction pursuant to 28 U.S.C. § 1291. As we write solely for the parties, we do not
restate the facts underlying the appeal.
I.
Echevarria argues that there was insufficient evidence to support his conviction for
(1) possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C.
§ 922(g), and (2) possession of cocaine base with the intent to distribute in violation of 21
U.S.C. § 841(a)(1). Specifically, he contends that the Government failed to prove beyond
a reasonable doubt that he “constructively possessed” the contraband at issue in this case,
which was not found on his person but concealed in the house in which he was arrested.
“In reviewing a jury verdict for insufficiency of the evidence, this court must
consider the evidence in the light most favorable to the government and affirm the
judgment if there is substantial evidence from which any rational trier of fact could find
guilt beyond a reasonable doubt.” U.S. v. Frorup, 963 F.2d 41, 42 (3d Cir. 1992) (citing
Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Aguilar, 843 F.2d 155,
157 (3d Cir. 1988)). Viewing the record from this perspective, we are convinced that
substantial evidence existed that Echevarria constructively possessed the contraband.
At trial the Government introduced, inter alia, the following evidence: (1) the
testimony of an eyewitness who saw Echevarria holding the gun at issue and wearing a

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leather jacket that was later seized by the police; (2) keys removed from the jacket, one of
which was shown to open a safe containing the cocaine base (and other supplies
commonly employed by those involved in the production and distribution of drugs) and
another of which was shown to open the front door of the house in which the contraband
was found and Echevarria was arrested; (3) additional evidence establishing that the
jacket was in fact Echevarria’s and was worn by him on the night in question; (4)
evidence tending to establish that he was aware of the gun’s location in the drawer in
which it was found; and (5) ammunition found by police in an upstairs bedroom in which
three forms of government-issued identification belonging to Echevarria were also found.
On the basis of this evidence, a rational jury could conclude that Echevarria
“knowingly ha[d] both the power and the intention at a given time to exercise dominion
or control over [the contraband], either directly or through another person or persons.”
U.S. v. Garth, 188 F.3d 99, 112 (3d Cir. 1999). In this context, his conviction is affirmed.
II.
Only Echevarria’s challenge to his sentence under Booker remains. Having
determined that the sentencing issues he raises are best determined by the District Court
in the first instance, we vacate his sentence and remand for resentencing in accordance
with Booker.

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