United States v. Rios-Lopez ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40339
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ONESIMO RIOS-LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-96-CR-102-5
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April 2, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Onesimo Rios-Lopez appeals his conviction and sentence for
being a felon in possession of firearms, in violation of 18
U.S.C. § 922(g)(1). He challenges the sufficiency of the
evidence; the district court’s exclusion of certain evidence as
hearsay, irrelevant, or inadmissible; and the consideration of
conduct for which Rios was acquitted in determining his guideline
sentencing range.
*
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that this opinion should not be published and is not precedent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. 97-40339
-2-
Rios’ challenge to the sufficiency of the evidence is that
the Government did not prove the possession element of the crime.
See United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995).
This argument lacks merit. See United States v. Smith, 930 F.2d
at 1081, 1086 (5th Cir. 1991) (evidence sufficient despite joint
occupancy because all weapons, including those in bedroom
apparently occupied by defendant, were conveniently accessible to
defendant). Viewed in the light most favorable to the
prosecution, the evidence is sufficient to support a finding that
Rios knowingly possessed the firearms.
Rios argues that he was unfairly prevented from introducing
evidence. Rios’ proffers one through thirty-four were certified
copies of public documents which Rios contends connected another
possible perpetrator to the residence and provided circumstantial
evidence relevant to show his opportunity and intent to commit
the offense. Rule 404(b) precludes admission of other crimes
evidence for the purpose of showing the propensity of another to
commit the crime. As for the other excluded evidence, the
district court did not abuse its discretion in excluding it as
hearsay, irrelevant, or prejudicial. See United States v.
Reeves, 892 F.2d 1223, 1225 (5th Cir. 1990).
Rios argues that the district court improperly considered
evidence of his possession of cocaine during the commission of
the firearms offenses because he was acquitted of the count
charging him with possession of the cocaine and because the
No. 97-40339
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Government failed to demonstrate any connection between the
cocaine and the weapons’ offenses. “A jury’s verdict of
acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence.” United
States v. Watts, 117 S. Ct. 633, 638 (1997).
Rios also challenges the sufficiency of the evidence to
support a finding that he possessed the weapons in connection
with a drug-trafficking offense. This court has held that the
presence of a firearm in the same room as drugs will support
application of U.S.S.G. § 2K21.1(c). United States v. Condren,
18 F.3d 1190, 1199-1200 (5th Cir. 1994). The district court’s
finding that the possession of the firearms was connected to a
drug-trafficking offense is not clearly erroneous. Rios’
challenge to the court’s application of the guidelines lacks
merit.
AFFIRMED.