          United States Court of Appeals
                      For the First Circuit


No. 14-1563

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       KENNY TORRES-COLÓN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpí, U.S. District Judge]



                              Before

                    Howard, Stahl, and Barron,
                          Circuit Judges.


     Javier A. Morales-Ramos for appellant.
     Max J. Pérez-Bouret, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, were on brief, for appellee.



                          June 12, 2015
          HOWARD, Circuit Judge. Defendant-Appellant Kenny Torres-

Colón appeals his conviction and sentence for unlawful possession

of a firearm.      Although two errors occurred at trial, both are

ultimately harmless.      Thus, we affirm his conviction.

                                    I.

          During    the   early   morning   hours    of    March    27,    2012,

Sergeant Edgardo Alvarado-Martínez and Agent Alberto Vázquez-Torres

were   patrolling    Highway   52   in    Salinas,    Puerto       Rico.     At

approximately 1:00 a.m., the officers recorded an oncoming vehicle

traveling at a speed of eighty miles per hour, exceeding the fifty-

five mile per hour speed limit.      Activating their cruiser's siren

and lights, the officers followed the vehicle.                  The vehicle

momentarily slowed down as if to stop, but then took off again at

a high speed.   The officers engaged in a hot pursuit, increasing

their own speed to between eighty and ninety miles per hour.

          After pursuing the vehicle for approximately two miles,

both officers witnessed the individual in the front passenger seat

toss something from the passenger-side window.            Sergeant Alvarado-

Martínez, who had a better vantage point from the cruiser's

passenger seat, observed the fleeing vehicle's passenger stick his

body half-way out of the window and throw something "solid and

black" from the vehicle that "made a solid sound, str[uck] the

[highway] barrier, and fell to the ground."          Agent Vázquez-Torres,

who was driving, also saw something solid fly from the passenger-


                                    -2-
side window.   Moments later, both officers saw the passenger throw

a second, "somewhat larger" item onto the roadway.              By radio,

Sergeant Alvarado-Martínez requested that a nearby third officer,

Agent Lorna Padilla-Cartagena, attempt to locate the discarded

objects, indicating that one item "might possibly have been a

firearm."   After about ten miles, the fleeing vehicle was met by a

police roadblock and forced to exit the highway.            The vehicle

stopped in a parking lot a short distance away.        The driver, Luis

J.   Vázquez-Álvarez   ("Vázquez"),    and   the   passenger,   defendant

Torres-Colón, were both arrested.            Sergeant Alvarado-Martínez

reconvened with Agent Padilla-Cartagena on Highway 52, who had

recovered a .40 caliber Glock pistol and a fanny pack containing

seventy-two rounds of ammunition, three high-capacity 22-round

magazines, and two 15-round magazines.         There was a hole in the

fanny pack, and bullets were scattered around the area.

            The defendant, who had a prior felony conviction, was

charged with one count of unlawful possession of a firearm in

violation of 18 U.S.C. § 922(g).      At trial, defense counsel argued

that the defendant did not knowingly possess the firearm because he

may have been unaware of its existence until Vázquez placed it in

his lap, at which point he quickly threw it out the window.           The

jury convicted the defendant, and the district court sentenced him

to sixty months' imprisonment.




                                 -3-
                                  II.

A.         The Use of Vázquez's Plea Agreement

           The    defendant   first   contends   that   the   government

improperly introduced into evidence the stipulated facts from the

plea agreement of the vehicle's driver, Vázquez, as substantive

evidence of the defendant's guilt.1     Although we agree, we find the

error harmless.

           Vázquez separately pled guilty to a charge arising out of

the same high-speed chase.      The government subpoenaed Vázquez to

testify at the defendant's trial, and called him as the first

witness.   However, before he took the stand, Vázquez's own counsel

alerted the parties and the court that Vázquez planned to assert

his Fifth Amendment right against self-incrimination. The district

court ruled that Vázquez was required to testify to the facts to

which he pled guilty, but that it would instruct Vázquez, "on a

question-by-question basis" whether he should answer a particular

question or whether the question went beyond the plea agreement's

scope.   The court agreed that the government could "sit [Vázquez]

down and show him his statement and ask him if that was his

statement."




     1
        Because the entire plea agreement was not entered into
evidence and is not otherwise included in the record, the exact
nature of Vázquez's conviction is unclear. During his testimony,
he described the charge only as a "weapons violation."

                                  -4-
            Commensurate with this discussion, Vázquez's testimony

was short and served largely, if not exclusively, as a vehicle to

read the plea agreement's stipulated facts to the jury.           Although

hesitant to answer any questions at first, Vázquez begrudgingly

complied upon prompting by the district court judge.                    After

establishing that Vázquez was not testifying as a cooperating

witness, the government immediately homed in on his guilty plea.

Vázquez acknowledged that he had entered into a plea agreement in

connection with "a weapons violation," although he clarified again

that   he   had   not   cooperated    with   the   government.     He    then

volunteered that, in making the agreement, he "was accepting that

the weapon was mine."     That spontaneous statement was not prompted

by the prosecutor's questioning.

            The   government   then    requested    to   offer,   over    the

defendant's objection, the plea agreement's stipulated facts.

Immediately before reading the stipulated facts into the record,

the prosecutor asked: "You mentioned earlier that you admitted

culpability that the gun was yours, that's what you testified

before; right?"     The government then read the following:

            During the high speed chase, the officer
            observed when the passenger, later identified
            as Kenny Torres-Colón, threw a firearm and
            fanny pack through the window.    The firearm
            was later described as a Glock pistol model
            22, .40 caliber bearing serial number BVW-
            2991US   and   72   rounds   of   .40-caliber
            ammunition. Eventually the officers detained
            the vehicle and arrested both subjects.


                                      -5-
          Direct examination ended almost immediately thereafter,

and defense counsel did not cross-examine Vázquez.                      The full plea

agreement was not entered as an exhibit.                    In its closing argument

rebuttal, the government reminded the jury that Vázquez had pled

guilty to the statement of facts accepted as part of his guilty

plea,   including       the    paragraph        read    to    the     jury.        During

deliberations,    the     jury    requested       to    see    the     plea   agreement

(specifically page eleven, containing the stipulated statement of

facts). After consulting with counsel, the court informed the jury

that the plea agreement had not been entered into evidence and,

accordingly,   that      the     jurors    would       have     to    rely    on   their

recollection of the testimony.

          As     with    other     challenges          to    the     admissibility    of

evidence, we review for abuse of discretion the district court's

ruling permitting the prosecutor to read a portion of the plea

agreement into evidence. See United States v. Morales-Machuca, 546

F.3d 13, 22 (1st Cir. 2008).              We begin with the uncontroversial

proposition that a defendant "is entitled to have the question of

his guilt determined upon the evidence against him, not on whether

a codefendant or government witness has been convicted of the same

charge." United States v. Dworken, 855 F.2d 12, 30 (1st Cir. 1988)

(citation and internal quotation marks omitted).                      As a result, the

guilty plea of a witness cannot be used as substantive evidence to

prove "the guilt of a defendant charged with similar crimes."                        Id.


                                          -6-
at 30-31 (citation and internal quotation marks omitted). A guilty

plea may be introduced, however, "for the limited purpose of

assessing the witness's credibility," United States v. Johnson, 26

F.3d 669, 677 (7th Cir. 1994), or to "dampen the effect of an

anticipated attack on the witness's credibility," Dworken, 855 F.2d

at 30.   But it is impermissible for the government, in effect, to

"borrow proof from another person's conviction."         United States v.

Woods, 764 F.3d 1242, 1246 (10th Cir. 2014), cert. denied, 135 S.

Ct. 1866 (2015).

            The record here lacks either a clearly articulated ground

for the government's admission of the plea agreement's factual

statement   or   a   stated   rationale   by    the   district   court   for

overruling the defendant's objection.          The government claims that

the plea was used to "impeach" Vázquez's testimony "after he

invoked his Fifth Amendment rights and refused to testify about the

facts of the case."    Yet, rather than attempt to ask any questions

that would have elicited information about the course of events

which could then be impeached, the government instead jumped

directly to asking about the guilty plea itself.           Moreover, even

assuming Vázquez's general invocation of the Fifth Amendment before

trial permitted the government to presume that he would remain

silent in the face of such questions, any refusal to testify would,




                                   -7-
of course, leave no testimonial statements to impeach.2   Cf. United

States v. Santiago, 566 F.3d 65, 70 (1st Cir. 2009) ("[N]either the

prosecution nor the defense may call a witness to the stand simply

to compel him to invoke the privilege against self-incrimination."

(internal quotation marks omitted)).

          The government also avers that the plea agreement was

read "for the sole purpose of corroborating the stipulated version

of the facts . . . and not to impute guilt on Torres-Colón by

association."   But introducing corroborating facts by way of the

plea agreement is, by definition, a substantive use.          It is

difficult to comprehend how the statement did not impute guilt,


     2
       During trial and again at oral argument before us -- though
absent from its appellate brief -- the government emphasized a
second possible credibility-based use: disputing Vázquez's
assertion at trial that he owned the firearm. But Vázquez only
made this unprompted, spontaneous statement during direct
examination, and the record reflects that the government had
already planned to introduce the plea agreement. Even accepting
the dubious proposition that the government always intended to
offer the plea agreement for this purpose, the stipulated facts say
nothing about ownership of the firearm. Although two statements
"need not be directly contradictory in order to be deemed
inconsistent," United States v. Richardson, 515 F.3d 74, 84 (1st
Cir. 2008), Vázquez's claim of ownership in no way contradicts the
plea agreement's short description of the chase. Nor, given its
limited relevance to the question of possession, is the owner's
identity the type of omitted detail that "would have been 'natural'
for the witness to include" in the prior statement such that a
sudden avowal on direct examination can be described as
inconsistent. United States v. Meserve, 271 F.3d 314, 321 (1st
Cir. 2001).     Because the government failed to establish an
inconsistency that would allow admission of the plea agreement for
the purpose of impeachment, admission on this ground was not within
the district court's discretion. See Fed. R. Evid. 613(b); United
States v. Hale, 422 U.S. 171, 176 (1975) ("[T]he court must be
persuaded that the statements are indeed inconsistent.").

                               -8-
given that it explicitly referenced the defendant by name.            Cf.

United States v. Peterman, 841 F.2d 1474, 1480-81 (10th Cir. 1988)

(noting    that   the     district   court   had   carefully   restricted

impeachment of the witness and screened the questions asked to

"assure they contained no references to [the defendant]"). This is

more than guilt by association; it is guilt vel non.

            The only inference that fairly can be drawn from the

record is that the government offered the stipulated facts "as

substantive evidence of the guilt of a defendant charged with

similar crimes," Dworken, 855 F.2d at 31. Indeed, during trial the

government essentially acknowledged as much.        That it planned from

the start to put Vázquez on the stand as its first witness merely

to read the stipulated facts into evidence suggests that the

government wanted to get those facts on the record at the very

start of its case.       This use strikes us as "the bald introduction

of a witness's guilty plea concerning facts or events similar to

that for which the defendant is on trial . . . suggesting to the

trier of fact that the defendant should be found guilty merely

because of the witness's guilty plea."       United States v. Universal

Rehab. Servs. (PA), Inc., 205 F.3d 657, 668 (3d Cir. 2000) (en

banc).    The government cites no case -- and we can find none -- in

which the guilty plea of a codefendant was permissibly used in this

substantive way.        Even more tellingly, the stipulated facts are

written in terms of what "the officer[s] observed."        Because those


                                     -9-
officers later testified in court, we can discern nothing that the

plea agreement added to the body of evidence that was not already

covered by that later in-court testimony, other than implying the

defendant's guilt.

          Allowing the stipulated facts to be read into evidence

under these circumstances was not a permissible exercise of the

trial judge's discretion under Federal Rule of Evidence 403,

especially where the judge failed to instruct the jury     that it

could not consider Vázquez's guilty plea as substantive evidence of

the defendant's guilt. See Dworken, 855 F.2d at 31–32 (noting that

"cautionary instructions limiting the jury's use of the guilty plea

to permissible purposes are critical" (internal quotation marks and

citation omitted)).    Despite the error, however, reversal of the

defendant's conviction is not required if the improper admission of

information concerning Vázquez's plea likely did not affect the

outcome of trial.    See United States v. Tom, 330 F.3d 83, 95 (1st

Cir. 2003).   To be sure, the jury's request to see the plea

agreement during deliberations indicates that some jurors may have

placed some emphasis on it.   But because the stipulated facts were

entirely duplicative of the other testimony that the government

offered at trial, any prejudice was minimal.

          The government also provided overwhelming evidence that

the defendant knowingly possessed the firearm, eliminating any

concern that he was found guilty merely by association.    Knowing


                                -10-
possession may be proven through actual or constructive possession,

and the defendant need not personally own the firearm.                     United

States v. Robinson, 473 F.3d 387, 398-99 (1st Cir. 2007).                   Actual

possession      is     "the    state     of    immediate,    hands-on    physical

possession,"     while        constructive      possession   exists     where    the

defendant "has the power and intention of exercising dominion and

control over the firearm."             United States v. Guzmán-Montañez, 756

F.3d   1,   8   (1st    Cir.    2014).        "Possession,   whether    actual    or

constructive, can be extremely brief: 'a minute of possession is as

much an offense as a year of possession.'"                    United States v.

DeCologero, 530 F.3d 36, 67 (1st Cir. 2008); see also United States

v. Teemer, 394 F.3d 59, 63 (1st Cir. 2005) (noting that "the

briefest moment of possession may be enough for a conviction").

Sergeant Alvarado-Martínez and Agent Vázquez-Torres both testified

that they directly observed the defendant pull his body out of the

passenger window and fling a solid black object onto the roadway,

followed by a second somewhat larger black object.               Agent Padilla-

Cartagena further testified to recovering a .40 caliber Glock

pistol, a fanny pack, several magazines, and ammunition in the

vicinity of where the items were thrown from the vehicle.                        She

stated that no other vehicles passed by that area between the time

that the chase began and when she recovered the items.                          This

collective      testimony       provides      overwhelming    evidence    of     the

defendant's actual possession of the firearm.


                                         -11-
            In addition, ample evidence rebutted the defendant's

defense to that possession.         Relying on the rule that "mere

proximity   to   a   weapon,"   standing   alone,    is   insufficient   to

demonstrate actual or constructive possession, United States v.

Weems, 322 F.3d 18, 24 (1st Cir. 2003), counsel pressed a "hot

potato" defense, suggesting that the defendant may not have known

about the firearm until Vázquez placed it in his lap.             Yet the

testifying officers observed the defendant fling the firearm and

fanny pack of ammunition onto the roadway from a speeding vehicle

actively evading police during a high-speed chase, indicating that

the defendant exercised a stake in the items and some decision-

making power over what to do with them.             Cf. United States v.

Ridolfi, 768 F.3d 57, 62 (1st Cir. 2014).       Additionally, when the

vehicle was searched after the high-speed chase, officers recovered

a motorcycle mask, a large Ziploc bag containing several smaller

bags appropriate for packaging drugs, two expelled .40 caliber

shell casings, and a "chewed up" bullet (a fired bullet that was

defective because the projectile had not been expelled from the

casing).     Collectively, this circumstantial evidence provided

strong indicia that the defendant had knowledge not only of the

firearm, but also of a larger criminal enterprise.             See United

States v. Ortiz, 966 F.2d 707, 713–14 (1st Cir. 1992). Finally, we

note that aspects of Vázquez's testimony actually proved helpful to

the defendant, particularly Vázquez's acknowledgment that the gun


                                   -12-
belonged to him and not the defendant, a point defense counsel

emphasized during closing argument to support his argument that the

defendant never possessed the firearm.   Accordingly, the district

court's error here "is insignificant when considered against the

totality of the evidence presented at trial."3    United States v.

Landron-Class, 696 F.3d 62, 71 (1st Cir. 2012).

B.         Prosecutor's Statements During Rebuttal Argument

           During the government's rebuttal, the prosecutor asked

the jurors to consider, when making their decision, whether they

would want the defendant driving along the highway beside them.

The defendant did not object to this statement at trial, but now

contends that it so poisoned the well as to affect the trial's

outcome.   We agree that the prosecutor's statement was improper,

but conclude that it was not sufficiently prejudicial to overcome




     3
       The defendant also asserts that there was insufficient
evidence for a rational jury to conclude that he knowingly
possessed the firearm, a claim he raised in the context of his
motion for acquittal. We review the denial of a Rule 29 motion de
novo, examining the evidence in the light most favorable to the
jury's verdict. United States v. García-Carrasquillo, 483 F.3d
124, 129-30 (1st Cir. 2007). As summarized above, a rational jury
could find that the defendant knowingly possessed the firearm. The
"government's evidence is not insufficient simply because the
defense presented a competing scenario." United States v. Ayala-
García, 574 F.3d 5, 11 (1st Cir. 2009).

                               -13-
the high hurdle of plain error.4   See United States v. Duarte, 246

F.3d 56, 60 (1st Cir. 2001) (setting forth plain error standard).

          The prosecutor's problematic remark played off of defense

counsel's entreaty during his own closing argument.        Defense

counsel stated:

          Your days are not going to be the same when
          you go [by] Salinas.     You are going to be
          remember [sic] this day because you are going
          to be remembering Kenny Torres-Colón.     When
          you see the Salinas toll, when you see the
          police station, you're going to remember Kenny
          Torres-Colón. Why? Because you are here, you
          are part of his history. We are all part of
          his history.

The prosecutor then opened his rebuttal argument with a direct

allusion to this sentiment:

          Now, Brother Counsel wants you to get Kenny
          Torres-Colón out of here, like get him out of
          here, in light of his arguments, based on the
          facts and based on the evidence of this day.
          And he wants you to remember, in the upcoming
          days when you go by Salinas, of your decision
          today. Well, the government also wants you to
          remember the decision that you make today when
          [you're] driving down Salinas and you wonder,
          depending on your decision, whether Kenny
          Torres-Colon is also driving along by you in
          the car beside you.



     4
       Defense counsel raised the issue in his Rule 29 motion
following trial, but that belated complaint was insufficient to
preserve this claim. Counsel's failure to timely object deprived
the trial court of an opportunity to take corrective action or
provide a limiting instruction. To preserve a claim of misconduct
during closing argument, a contemporaneous objection must be made
during or directly after the prosecutor's closing argument. E.g.,
United States v. Trinidad-Acosta, 773 F.3d 298, 313-14 (1st Cir.
2014).

                               -14-
          We have consistently held that a prosecutor's remarks are

improper "where they serve no purpose other than to inflame the

passions and prejudices of the jury, and to interject issues

broader than the guilt or innocence of the accused." United States

v. Santos-Rivera, 726 F.3d 17, 27 (1st Cir. 2013) (citation and

internal quotation marks omitted).     The challenged statement here

encouraged the jury "to act in ways other than as dispassionate

arbiters of the facts."   United States v. Mooney, 315 F.3d 54, 59

(1st Cir. 2002).   The naked appeal to the jurors' sense of whether

they would want the defendant driving alongside them implicitly --

if not explicitly -- invited the jury to mull considerations which

are irrelevant to determining the defendant's guilt or innocence

based solely on the trial evidence.

          We view problematic statements during rebuttal with

particular scrutiny, because the government's rebuttal argument

offers the last word before the jury begins deliberations.   United

States v. Ayala-García, 574 F.3d 5, 20 (1st Cir. 2009).        While

"some leeway is appropriate" when comments "may fairly be seen as

a response to comparable remarks by defense counsel," id. at 18, we

read the defense's plea to "remember Kenny Torres-Colón" as a

reminder of the solemnity of the jurors' duty to render a fair and

impartial verdict, not an invocation of considerations outside the

evidence presented at trial.   By contrast, the challenged rebuttal

statement raised the specter of a threat to public safety -- and


                                -15-
the jurors' own personal security -- if the jury voted to acquit.

Cf. Robinson, 473 F.3d at 397 (finding impropriety where the

government "resort[ed] to unsupported hypotheticals" about gun

violence during closing argument); Mooney, 315 F.3d at 59 (finding

that the government "crossed the bounds of permissible argument" by

invoking "the jurors' sense of community safety" during opening

statements).

          Although the error here was clear and obvious, we cannot

conclude that the prosecutor's statement "so poisoned the well that

the trial's outcome was likely affected."      Arrieta-Agressot v.

United States, 3 F.3d 525, 528 (1st Cir. 1993) (citation and

internal quotation marks omitted).      The defendant claims that

prejudice was apparent here because there was "scant" evidence that

he knowingly possessed the firearm.   But we reject that contention

since, as discussed above, the government presented ample evidence

from which the jury could convict the defendant. Cf. United States

v. Verrecchia, 196 F.3d 294, 302 (1st Cir. 1999) ("Given the

strength of the evidence against [the defendant], nothing in the

prosecutor's arguments amounted to plain error.").

C.        Remaining Issues

          The defendant's remaining claims do not warrant relief.

First, the argument that his conviction exceeds Congress's Commerce

Clause power, because the fact of the firearm's origin in Austria

supplies an insufficient nexus to interstate commerce, is "no


                               -16-
longer open in this circuit."         United States v. Joost, 92 F.3d 7,

14 (1st Cir. 1996). We have "repeatedly and unreservedly rejected"

this claim, holding instead that § 922(g)(1) is constitutional when

applied to "the possession of a gun that previously traveled

interstate."     United States v. Roszkowski, 700 F.3d 50, 57-58 (1st

Cir. 2012).

          In passing, the defendant also avers that the indictment

and verdict were faulty because the indictment charged him with

unlawfully     possessing   a   firearm      "in   and   affecting    interstate

commerce," rather than "in or affecting interstate commerce" as the

statute provides.      See 18 U.S.C. § 922(g) (emphasis added).                He

contends that the government failed to show he possessed the

firearm both "in" and "affecting" commerce.              But since he neither

develops this argument nor cites any authority to support it, it is

waived.   See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.

1990).    In    any   event,    it   is   well-established     that    where   an

indictment charges in the conjunctive (using "and"), but the

statute is framed in the disjunctive (using "or"), the government

need only prove one of the charged acts at trial.                     See United

States v. García-Torres, 341 F.3d 61, 66-67 (1st Cir. 2003); see

also United States v. Rice, 520 F.3d 811, 816-17 (7th Cir. 2008).

Whether one describes possession of a firearm manufactured abroad

as "in" or "affecting" commerce, the government provided sufficient

evidence to prove the limited interstate nexus that § 922(g)


                                      -17-
requires.    See United States v. Corey, 207 F.3d 84, 88 (1st Cir.

2000).

            The defendant's related Confrontation Clause claim also

misses the mark.     During direct examination, the government's

firearms expert established that the firearm's country of origin

was Austria based on a manufacturing inscription on the right side

of the firearm's frame that stated "made in Austria" and a similar

mark on the slide that stated "Austria."           The expert further

testified that because firearms are not manufactured in Puerto

Rico, the firearm must have traveled in interstate or foreign

commerce.   Although the defendant complains that the expert's own

presentation was testimonial, his emphasis is misplaced.           Our

Confrontation Clause analysis asks not whether the testifying

witness's own statements are testimonial (they undoubtedly always

will be); instead, the operative inquiry is whether the statements

of a witness "absent from trial" are testimonial.         Crawford v.

Washington, 541 U.S. 36, 59 (2004) (emphasis added).      Here, given

its   tangential    relation   to   any   future    prosecution,   the

manufacturing label's statement that the firearm was made in

Austria -- even if hearsay -- was plainly nontestimonial in the

sense that it was not made by the manufacturer with "the primary

purpose . . . to establish or prove past events potentially

relevant to later criminal prosecution."    Davis v. Washington, 547

U.S. 813, 822 (2006).


                                -18-
          Finally, the defendant contends that the evidence was

insufficient to establish that the firearm he threw from the

vehicle was semiautomatic -- a necessary factual predicate for the

base offense level the district court applied at the sentencing

phase.   See U.S.S.G. § 2K2.1(a)(4)(B).           We review the district

court's findings of fact at sentencing for clear error, United

States v. Wallace, 573 F.3d 82, 92 (1st Cir. 2009), and find none.

The government pointed out during the sentencing hearing that the

trial evidence established the firearm was a .40-caliber Glock

pistol, commonly known to be semiautomatic. The court nevertheless

granted a continuance to allow the government to proffer additional

evidence at the sentencing hearing that the Glock pistol was indeed

semiautomatic.    Special Agent Jorge Rosendo testified that Glock

pistols are manufactured as semiautomatic weapons, and that he

personally conducted a "dry test" to determine if the weapon in

question worked in accordance with its design.           The test entailed

moving the slide back and forth to see if the trigger reset (as in

a semiautomatic firearm) or remained activated (as it would for a

modified, automatic firearm).      Agent Rosendo testified that "the

slide returned, and the trigger reset."          From this testimony, the

district court could find by a preponderance of the evidence that

the   firearm    was   an   unaltered    Glock    and,   consequently,   a

semiautomatic firearm.      Though defense counsel attempted to expose

perceived weaknesses in Agent Rosendo's testimony during cross-


                                  -19-
examination, the district court did not clearly err in finding that

effort unpersuasive.

                               III.

          For the foregoing reasons, we affirm the defendant's

conviction and sentence.




                               -20-
