United States v. Bazan , 114 F. App'x 157 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 2, 2004
Charles R. Fulbruge III
Clerk
No. 04-40399
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON BAZAN, III,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-230-1
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges
PER CURIAM:*
Ramon Bazan, III, appeals his jury conviction and sentence
for possession of a firearm by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Bazan contends that the Government failed to prove beyond a
reasonable doubt that he knowingly possessed a firearm. Because
Bazan did not move for a judgment of acquittal in the district
court,“our review is limited to determining whether there was a
manifest miscarriage of justice, that is, whether the record is
*
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this opinion should not be published and is not precedent except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. 04-40399
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devoid of evidence pointing to guilt.” United States v. Delgado,
256 F.3d 264, 274 (5th Cir. 2001) (internal quotation marks and
citation omitted). Viewing the evidence in the light most
favorable to the Government and giving the Government the benefit
of all reasonable inferences and credibility choices, the record
is not devoid of evidence that Bazan knowingly possessed a
firearm. See United States v. Glavan, 949 F.2d 777, 783 (5th
Cir. 1991) (internal quotation marks and citation omitted).
Bazan also contends that the district court deprived him of
his constitutional right to present a defense by limiting his
closing argument and forcing him to choose between his right not
to have an unconstitutionally obtained statement introduced and
his right to put the Government’s case to meaningful adversarial
testing via closing argument on the Government’s faulty
investigation of the case. Because Bazan did not object to the
alleged error in the district court, this court reviews for plain
error. See United States v. Calverley, 37 F.3d 160, 162 (5th
Cir. 1994) (en banc).
The record does not support Bazan’s assertion that the
district court limited his closing argument and forced him to
give up one constitutional right to enforce another. Therefore,
Bazan cannot show plain error. See Calverley, 37 F.3d at 162-64.
Bazan further contends that his due process rights were
violated when Officer Carlos Muniz presented false testimony at
trial and the Government relied on this false testimony in its
No. 04-40399
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closing argument. Because Bazan did not object to the alleged
error in the district court, this court reviews for plain error.
See Calverley, 37 F.3d at 162.
The record does not support Bazan’s claim that Officer Muniz
testified falsely. Further, assuming arguendo that Officer Muniz
testified falsely and the Government knew his testimony was
false, Bazan cannot establish that the false testimony was
material. Therefore, Bazan cannot show plain error. See
Calverley, 37 F.3d at 162-64; United States v. Mason, 293 F.3d
826, 828 (5th Cir. 2002).
Finally, Bazan contends that the armed career criminal
sentencing enhancement under 18 U.S.C. § 924(e)(1) violated his
constitutional rights to an indictment by a grand jury and to a
trial by jury. He also contends that Blakely v. Washington, 124
S. Ct. 2531 (2004) applies in determining his sentence.
As Bazan concedes, these issues are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
United States v. Piniero, 377 F.3d 464, 473 (5th Cir.), petition
for cert. filed (U.S. July 14, 2004).
Accordingly, the district court’s judgment is AFFIRMED.