*Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40409

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROLANDO VENTURA COK,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-95-CR-212-1

 

November 21, 1996

Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rolando Ventura Cok appeals his sentence for violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2), possession of a firearm by a

convicted felon. He argues that there was not a sufficient factual

basis for the district court to impose a four-level increase to his

base offense level under U.S.S.G. § 2K2.1(b)(5). The court found

that the four-level increase applied to Cok because he had
2

committed the felony of aggravated assault by pointing the gun at

Connie Reyna and threatening to shoot her.

We cannot say that the district court committed any clear

error at sentencing. “The defendant bears the burden of

demonstrating that information the district court relied on in

sentencing is materially untrue.” United States v. Vela, 927 F.2d

197, 201 (5th Cir.) (internal quotations and citations omitted),

cert. denied, 502 U.S. 875 (1991). The testimony was sufficient

for the court to conclude by a preponderance of the evidence that

Cok did in fact commit an aggravated assault. See United States v.

Angulo, 927 F.2d 202, 205 (5th Cir. 1991).

Claudia Soliz, Reyna’s sister, testified that Cok took the gun

out of his jacket during an argument with Reyna and threatened her.

Both ATF Agent Gary Mozey and Officer Alvaro Benavides testified

that Reyna, who has since died, told them the same story on

separate occasions. The district court entertained Cok’s denials

that he assaulted Reyna, but it ultimately discredited Cok’s

account because it doubted his credibility.

Cok has attempted to meet his burden by pointing out several

inconsistencies in Soliz’s account of his argument with Reyna. He

argues, for example, that Reyna made no mention of a firearm when

she called the police to complain about Cok’s behavior. He

observes that the police inventory of Cok’s clothing did not

include a jacket. And he notes that although Soliz claims that

Reyna called the police after she left Reyna’s house, the police
3

telephone records show that the call occurred before the time that

Soliz claims she left the house.

But Cok’s arguments do not go so far as to establish that the

district court erred in finding that the assault took place. The

court found it plausible that Reyna did not mention the firearm

during her phone conversation with police because of fear.

Similarly, Cok could have taken the jacket off before police

apprehended him, and Soliz’s memory of the exact time she left the

house could be murky. Cok’s other arguments to undermine Soliz’s

testimony are no more convincing. The court had sufficient reason

to credit the direct testimony of eyewitnesses and to accept the

findings in the presentence investigative report. We will not

disturb facts found by the trial court when there is adequate

evidence in the record to support those facts.

AFFIRMED.