United States v. Rangel ( 2003 )

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.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. W-02-CR-27-1
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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that this opinion should not be published and is not precedent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
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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
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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.