UNITED STATES of America, Plaintiff-Appellee, v. Ismael Holguin HERRERA, Defendant-Appellant, 313 F.3d 882

PER CURIAM: Primarily at issue is the correct standard of review for Ismael Holguin Herrera’s sufficiency of the evidence challenge to his 18 U.S.C. § 922(g)(3) conviction (possessing firearms while “unlawful user” of controlled substance). AFFIRMED. I.

In a multi-count indictment against nine defendants, Herrera was charged in three: count 1, violation of 21 U.S.C. §§ 841(a)(1) and 846 (conspiracy to distribute more than 500 grams of cocaine); count 14, violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and 846 (possession with intent to distribute more than 500 grams of cocaine); and count 16, violation of 18 U.S.C. § 922(g)(3) (on or about 9 December 1999, possession of firearms while being unlawful user of, or addicted to, controlled substance). A jury convicted Herrera on each count.

Herrera appealed, claiming insufficient evidence for each conviction; a divided panel of our court affirmed two (counts 1 and 14) but reversed on count 16. United States v. Herrera, 289 F.3d 311 (5th Cir.), vacated pending en banc review, 300 F.3d 530 (5th Cir.2002) (en banc). United States District Judge Adrian Duplantier, sitting by designation, dissented from the reversal. 289 F.3d at 325. Rehearing en banc was granted, limited to the reversed § 922(g)(3) conviction. Herrera, 300 F.3d 530. II.

The only issue before our en banc court is the sufficiency of the evidence for Herrera’s conviction for possessing firearms on or about 9 December 1999, while being an “unlawful user” of a controlled substance^ in violation of § 922(g)(3). The controlling question is the applicable standard of review, because Herrera failed in district court to move for judgment of acquittal (JA) on the issue at hand. Herrera moved for a Fed.R.Crim.P. 29 JA after the Government presented its case in chief. For the § 922(g)(3) count at issue, however, he did so only on one specific ground.

Section 922(g)(3) prohibits possessing firearms if the accused is then either addicted to a controlled substance (not- at issue here) or an unlawful user of it. For that count, Herrera’s Rule 29 motion asserted only that there was insufficient evidence to convict on the “addicted to” alternative. Restated, he neither contested the “unlawful user” alternative nor asserted he was not an “unlawful user” when he possessed firearms on or about 9 December 1999. Following denial of his motion, Herrera presented evidence, including his testifying.

At the close of evidence, Herrera’s JA motion based on the same, earlier asserted grounds was denied. Post-verdict, Herrera failed to move for JA until long after the seven-day period for filing the motion had run. See Fed. R.CrimP. 29(c). The motion was denied as time-barred; Herrera does not contest that ruling. Herrera maintains we should review under the usual standard for sufficiency claims: evidence is sufficient if, “after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt”.

United States v. Daniel, 957 F.2d 162, 164 (5th Cir.1992). See also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Instead, because Herrera did not seek JA for the issue at hand, our review is far more narrow. Where, as here, a defendant asserts specific grounds for a specific element of a specific count for a Rule 29 motion, he waives all others for that specific count. E.g., United States v. Belardo-Quinones, 71 F.3d 941, 945 (1st Cir.1995); United States v. Dandy, 998 F.2d 1344, 1357 (6th Cir.1993).

As noted, Herrera claimed insufficient evidence only concerning his status as an “addict”, not as an “unlawful user”; and he did not claim insufficient evidence concerning whether he was an “unlawful user” on or about the time he possessed the firearms. Accordingly, “[b]ecause [Herrera] waived any objection to the sufficiency of the evidence [for the points now at issue], our review is limited to determining whether ... the record is devoid of evidence pointing to guilt”. United States v. Delgado, 256 F.3d 264, 274 (5th Cir.2001) (internal quotation marks and citation omitted). See also United States v.

Carbajal, 290 F.3d 277, 290 (5th Cir.2002), petition for cert. denied, — U.S. -, 123 S.Ct. 34, 154 L.Ed.2d 235 (2002); Daniel, 957 F.2d at 164. Therefore, we review the record only to determine whether it is devoid of evidence that, on or about 9 December 1999, Herrera was an “unlawful user” of a controlled substance while in possession of firearms. Along this line, the Government conceded in its supplemental en banc brief that, for a defendant to be an “unlawful user” for § 922(g)(3) purposes, his “drug use would have to be with regularity and over an extended period of time”.

The Government reiterated this at en banc oral argument: “We certainly wouldn’t charge one time use. It would have to be over a period of time”. Pursuant to our record-review, the record is not devoid of evidence that, on or about 9 December 1999, Herrera unlawfully used cocaine while possessing firearms. III. For the foregoing reasons, the conviction for violation of 18 U.S.C. § 922(g)(3) (count 16) is AFFIRMED. For the other two counts of conviction (1 and 14), the applicable portions of the panel opinion, 289 F.3d at 314-19, are reinstated. Therefore, the judgments on all three counts are AFFIRMED.

In applying this very narrow standard of review, and contrary to the concerns expressed by the dissent, we follow well-settled, not “new", rules of criminal procedure. For the count at issue, Herrera chose to make a quite specific, not a general, motion for judgment of acquittal; he moved for such relief only pre-verdict (again, he does not contest the denial, as untimely, of his post-verdict motion); and we, not the parties, determine the appropriate standard of review, as discussed, for example, in our controlling en banc decisions in United States v.

Pierre, 958 F.2d 1304, 1311 n. 1 (5th Cir.) (en banc), cert. denied 506 U.S. 898, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992), and United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.) (en banc), cert. denied 505 U.S. 1223, 112 S.Ct. 3039, 120 L.Ed.2d 908 (1992). Needless to say, the applicable "devoid of evidence” standard is quite different from, and far more narrow than, review for plain error. Compare Delgado, 256 F.3d at 274, with United States v.

Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (through plain error review, court has discretion to correct "clear" or "obvious” error that affects substantial rights and seriously affects fairness, integrity, or public reputation of judicial proceedings). See Fed. R.Crim.P. 52(b). Simply put, application of this narrow standard is not to avoid issues — far from it. Instead, it is in keeping with well-established rules of criminal procedure that ensure issues are tried in the trial, not the appellate, court.