* Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20712 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. SYED MAAZ SHAH Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:06-CR-428-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * On two bases, Syed Maaz Shah challenges his conviction, by a jury, of possession of a firearm by an alien admitted to the United States under a nonimmigrantvisa, in violation of18 U.S.C. §§ 922(g)(5)(B) and 924(a)(2). Shah also challenges his 78-month prison sentence. (The Government’s motion to supplement the record with its original trial exhibits is GRANTED.) United States Court of Appeals

Fifth Circuit 

### F I L E D October 6, 2008 Charles R. Fulbruge III ClerkNo. 07-20712

2 Following a lengthy FBI investigation, Shah was arrested on 28 November 2006 at the University of Texas at Dallas, where he was a student. Shah, who testified that he was in the country on a non-immigrant student visa, admitted to the arresting law-enforcement officers that, i nter alia, he had been participating in combat training in preparation for “jihad” against the United States. At trial, the evidence showed that Shah had possessed an Armalite model M-15A 4 semi-automatic rifle during two combat training sessions held at a camp in Willis, Texas. The jury found him guilty of violating 18 U.S.C. §§ 922(g)(5)(B) and 924(a)(2). At sentencing, the district court concluded that Shah’s underlying conduct warranted an upward departure. He was sentenced to 78 months imprisonment. For the first of his two bases for challenging his conviction, Shah claims the district court erred by admitting in evidence his incriminating post-arrest statements. He maintains the Government failed to demonstrate that the statements were obtained in compliance with Miranda v. Arizona, 384 U.S. 436 (1966). We reject Shah’s assertion that he preserved this issue for appeal through his motion to dismiss the indictment. Nevertheless, because the testimony at the hearing on Shah’s motion to exclude evidence clearly focused
on whether Shah had voluntarily made the statements to the officers following the issuance ofMiranda warnings, we conclude that Shah sufficiently preserved this issue for review. Whether a defendant voluntarily waived his Miranda rights is a legal question, subject to de novo review

. E .g., United States v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993). We must, however, “give credence to the credibility choices and findings of fact of the district court unless they are clearly erroneous”. I d. The Government has the burden of proving, by a preponderance of the evidence: that the defendant voluntarily waived his rights; and that the statements he made were voluntary. Id.No. 07-20712

3 The district court had before it the consistent and corroborative testimony
o f three officers that Shah did not request an attorney prior to making hi s incriminating statements. The district court’s determination that the officers’ testimony was credible, and that Shah’s testimony was not credible, was not clearly erroneous. See id. Moreover, by stating its credibility determination on the record, the court complied with itsobligation under Federal Rule ofCriminal Procedure 12(d). For his other challenge to his conviction, Shah asserts that the district court erred in denying his motion for ajudgment ofacquittal. Shah’s motion was based on the affirmative defense of entrapment. Among other things, an undercover agent participated in the training sessions. Shah maintains that person entrapped him. (The Government incorrectly asserts that Shah failed to renew his motion for a judgment of acquittal at the close of the evidence.) “When a jury, which was fully charged on entrapment, rejects the defendant’s entrapment defense, the applicable standard of review is the same as that which applies to sufficiency ofthe evidence.” U nited Statesv. Rodriguez, 43 F.3d 117, 1 26 (5th Cir. 1995). We must accept every fact in the light most favorable to thejury’s guilty verdict, and we may reverse only ifno rational juror could have found, beyond a reasonable doubt, either: (1) a lack of Government inducement; or (2) predisposition to commit the offense charged. E .g. , United States v. Reyes, 239 F.3d 722, 739 (5th Cir. 2001). Ample evidence permitted a rational juror to conclude that Shah was a willing participant in the training sessions, and, thus, that hewas not entrapped into possessing a firearm. A defendant’s ready and willing participation in Government solicited criminal activity is sufficient to prove predisposition. I d. Shah’sattempt tocharacterize his purported entrapment asfalling within the “Bueno” defense is unavailing. “The principle of B ueno was rejected and the
case effectively overruled by the Supreme Court in Hampton v. United State s,No. 07-20712

4 425 U.S. 484 [] (1976).” U nited States v. Hill , 626 F.2d 1301, 1306 (5th Cir. 1980); see United States v. Bueno, 447 F.2d 903 (5th Cir. 1971). Shah’s contention that he was not “positionally predisposed” to possess a firearm is, like

wise, without merit. Even assuming, arguendo, that this court would recognize the positional-predisposition concept, Shah has not established that no rational juror could have found that he could not have possessed a firearm without the Government’s inducement. See United States v. Ogle , 328 F.3d 182, 188-89 (5th Cir. 2003); seealso United Statesv. Hollingsworth, 27 F.3d 1196, 1200-03 (7th Cir. 1994) (because the defendants had “no prayer of becoming money launderers without the government’s aid”, they were not positionally predisposed to commit the offense). Finally, Shah contends that his 78-month sentence should be vacated because the record fails todemonstrate that the district court was aware it could go below “the floor of the guidelines level in sentencing” him. Shah posits that, because he was sentenced prior to the decisions in Gall v. United States, 128 S. Ct. 586 (2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007), the district court was unaware it had the discretion to sentence hi m below the sentencing range set forth under the advisory guidelines. Shah never apprised the district court of a constitutional claim regarding the court’s procedure in assessing his sentence. Accordingly, this issue is reviewed only for plain error. See United States v. Arnold, 416 F.3d 349, 355 (5th Cir. 2005). His contention fails on the second prong of plain-error review: he fails to show a clear or obvious error. In Gall and Kimbrough, “the Supreme Court

. . . more explicitly set forth the permissible considerations in imposing a sentence, whether within or without an applicable Guidelines range”. U nited States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). Even prior to the decisions in G all and Kimbrough, the Supreme Court had already recognized that a district court could impose a sentence that varied from the advisory guideline range based solely on policyNo. 07-20712

5 considerations, including disagreementswith the Guidelines. SeeWilliams, 517 F.3d at 809 (referencing Rita v. United States, 127 S. Ct. 2456 (2007)); see also United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (noting that, in K imbrough, “the Court reiterated what it had conveyed in Rita”). Because Rita wasdecided before Shah wassentenced, Shah’s contention that the subsequent decisions in Gall and Kimbrough would have changed the district court’s sentencing perspective iswithout merit. Moreover, there is no indication in the record that the district court believed the advisory guidelines range should presumptively apply. See United Statesv. Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008). As stated, Shah has not demonstrated clear or obvious error in the district court’s imposition of his sentence. See Arnold, 416 F.3d at 355. AFFIRMED.