United States of America v. Nathaniel Diaz Punzalan

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHANIEL DIAZ PUNZALAN,
Defendant - Appellant.
No. 09-10188
D.C. No. 1:07-cr-00075-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Argued and Submitted October 13, 2010
Honolulu, Hawaii
Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.
Although certainly not overwhelming, the evidence against Nathaniel Punzalan
(“Punzalan”) was sufficient to support his jury trial conviction under 18 U.S.C.
§ 922(g) for being a felon in possession of a firearm. See Jackson v. Virginia, 443
U.S. 307, 319 (1979); United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010)
FILED
JAN 18 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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(en banc). The district court’s within-Guidelines sentence, reflecting proper
consideration and weighing of the 18 U.S.C. § 3553(a) sentencing factors, was neither
procedurally nor substantively unreasonable. We therefore affirm.
To sustain a conviction under § 922(g), the government must prove the
defendant’s actual or constructive possession of the firearm and not merely his or her
presence in its vicinity. See Nevils, 598 F.3d at 1167; United States v. Bernard, 48
F.3d 427, 430 (9th Cir. 1995); United States v. Chambers, 918 F.2d 1455, 1459 (9th
Cir. 1990). Constructive possession can be established with circumstantial evidence
alone, United States v. Thongsy, 577 F.3d 1036, 1041 (9th Cir. 2009), and may
properly be inferred from a defendant’s exclusive control over the premises where
contraband is found, United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985).
Under these standards, a rational jury could have found Punzalan guilty of violating
§ 922(g).
Although the district court initially miscalculated the range of potential
sentences, it corrected this error and sentenced Punzalan based on the correct
Guidelines range given his total offense level and criminal history category. The
district court also treated the Guidelines as advisory, allowed Punzalan to present his
argument for a reduced sentence, and considered the § 3553(a) factors before
imposing an individualized sentence at the high end of the Guidelines range, which

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it adequately explained. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.
2008) (en banc). Furthermore, Punzalan fails to carry his burden of persuasion in
showing how any alleged procedural error resulted in prejudice affecting his
substantial rights. See United States v. Olano, 507 U.S. 725, 734 (1993).
Punzalan’s sentence was also substantively reasonable, reflecting consideration
and weighing of the § 3553(a) factors, including the seriousness of the offense,
deterrence, public safety, and Punzalan’s rehabilitation, as well as his personal
background and criminal history. The district court expressed particular concern for
Punzalan’s repeated recidivism at such a young age and his need for counseling in a
controlled setting. Although not presumptively reasonable, a within-Guidelines
sentence “ordinarily needs little explanation,” Carty, 520 F.3d at 992, and this Court
will not substitute its judgment for that of a sentencing judge “‘in a superior position
to find facts and judge their import under § 3553(a) in the individual case,’” United
States v. Cherer, 513 F.3d 1150, 1160 (9th Cir. 2008) (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). The sentence was also within discretionary bounds and
sufficiently individualized.
AFFIRMED.

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