United States v. Rangel

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 16, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50732 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GABRIEL RANGEL,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Western District of Texas USDC No. W-02-CR-27-1 --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

A jury convicted Gabriel Rangel (Rangel) of possession with

intent to distribute cocaine base under 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(c). He appeals his conviction on the grounds that there

was insufficient evidence to sustain the jury’s verdict.

Although Rangel moved for judgment of acquittal under FED. R. CRIM.

P. 29 at the close of the Government’s case, he did not renew the

motion. Consequently, “our review is limited to determining

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-50732 -2-

whether there was a manifest miscarriage of justice.” United

States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002) (internal

quotation marks and citation omitted).

Among other things, the police found a large amount of cocaine

base and items used in drug trafficking where Rangel was living.

Thus, the evidence was sufficient for the jury to find that Rangel

had knowledge and constructive possession of the cocaine base found

during the police raid and that he intended to distribute it. See

United States v. Onick, 889 F.2d 1425, 1430 (5th Cir. 1989).

Rangel’s challenge to his conviction based upon the bias and

credibility of the government witnesses is unavailing. None of the

government witnesses testified as to “facts that a witness

physically could not have observed or events that could not have

occurred under the laws of nature.” United States v. Gadison, 8

F.3d 186, 190 (5th Cir. 1993) (internal quotation marks and

citation omitted). Therefore, the jury could choose whether to

discredit all or part of any witness’ testimony, and that decision

is not reviewable on appeal. See id.

Rangel appeals his sentence on the grounds that the district

court erred in increasing his base offense level by two levels

under U.S.S.G. § 2D1.1(b)(1) based on findings in the Presentence

Investigative Report (PSR) that the police discovered a loaded

pistol during the search of his bedroom. Rangel objects to the

base level increase solely on the ground that he was acquitted on

the charge of knowingly carrying a firearm in relation to a drug No. 02-50732 -3-

crime in violation of 18 U.S.C. § 924(c)(1). However, the jury’s

acquittal does not satisfy Rangel’s burden to present rebuttal

evidence to challenge the findings in the PSR. See United States

v. Buchanan, 70 F.3d 818, 828 and n.8 (5th Cir. 1996).

The Government carried its burden of proving that a weapon was

present and established that “a temporal and spatial relationship

exist[ed] between the weapon, the drug-trafficking activity, and

[Rangel].” United States v. Marmolejo, 106 F.3d 1213, 1216 (5th

Cir. 1997). Therefore, the district court’s finding that Rangel

possessed a firearm in connection with his drug offense “is

plausible in light of the record as a whole” and the district court

did not clearly err in imposing the enhancement under

§ 2D1.1(b)(1). United States v. Huerta, 182 F.3d 361, 364 (5th

Cir. 1999).

Accordingly, Rangel’s conviction and sentence are hereby

AFFIRMED.