* 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that this opinion should not be published and is not precedent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. United States Court of Appeals

Fifth Circuit



## FILED

April 16, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 F ED

. R. C RIM

.

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

motion. Consequently, “our review is limited to determiningNo. 02-50732

-2-

whether there was a manifest miscar riage of justice.” U nited

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. S ee

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 wi tnesses testified as to “facts that a witness

physically could not have observed or events that could not have

occurred under the laws of nature.” U n ited 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 Repor t (PSR) that the police discovered a loaded

pistol during th e 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 relatio n to a drugNo. 02-50732

-3-

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

acquitt al 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

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

[Rangel].” U nited 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). U nited Stat es v. Huerta , 182 F.3d 361, 364 (5th

Cir. 1999).

Accordingly, Rangel’s conviction and sentence are hereby

AFFIRMED.