                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                      UNITED STATES COURT OF APPEALS
                               FIFTH CIRCUIT                              April 10, 2006

                                                                     Charles R. Fulbruge III
                                                                             Clerk
                               No. 05-50603
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                   versus

                              PEDRO RANGEL,

                                                            Defendant-Appellant.


             Appeal from the United States District Court
                   for the Western District of Texas
                            (1:04-CR-250-2)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Pedro Rangel appeals his 120-month sentence following his jury

conviction     for   possession   with       the   intent   to   distribute,      and

conspiracy to possess with the intent to distribute, more than five

kilograms of cocaine.      Rangel asserts that, because the jury found

him not guilty of possession of, or conspiracy to possess, a firearm

in furtherance of a drug-trafficking crime, the district court

clearly erred in finding he possessed a firearm in connection with


     *
        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that this opinion should not be published and is not precedent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.

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the offense and enhancing his sentence as a result.             We review for

clear    error     fact-finding      with      respect    to    enhancements;

interpretation of the Guidelines, de novo.             E.g., United States v.

Creech, 408 F.3d 264, 270 n.2 (5th Cir.), cert. denied, 126 S. Ct.

777 (2005).

     The jury’s finding Rangel not guilty of possession of, or

conspiracy    to    possess,     a   firearm      in   furtherance     of   drug

trafficking, did not bar the district court’s increasing his

offense level under Sentencing Guideline § 2D1.1(b)(1) (allowing

two-level increase for possession of dangerous weapon, including a

firearm).     United States v. Buchanan, 70 F.3d 818, 828 (5th Cir.

1995), cert. denied, 517 U.S. 1114 (1996) (“While a conviction

requires proof beyond a reasonable doubt, a district court may

sentence a defendant within the Sentencing Guidelines on any

relevant evidence that has sufficient indicia of reliability to

support its probable accuracy.”) (internal citation and quotation

marks omitted).

     Such possession is established if the Government proves by a

preponderance of the evidence “that a temporal and spatial relation

existed between the weapon, the drug trafficking activity, and the

defendant”.      United States v. Hooten, 942 F.2d 878, 882 (5th Cir.

1991); see United States v. Vasquez, 161 F.3d 909, 912 (5th Cir.

1998)   (“Applying    this     standard,    the    government   must    provide

evidence that the weapon was found in the same location where drugs



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or drug paraphernalia are stored or where part of the transaction

occurred.”) (internal citation and quotation marks omitted).

     The evidence reflects that numerous firearms and ammunition

were found in the home of Rangel and his son (a coconspirator),

along with cocaine, money, and supplies.                    Firearms, ammunition, or

both were found in Rangel’s bedroom, his son’s bedroom, and common

areas of the home.

     Pursuant       to   Sentencing       Guidelines          §    1B1.3(a)(1)(B),        a

defendant’s     offense     level       may       be   increased    to   reflect       “all

reasonably foreseeable acts and omissions of others in furtherance

of the jointly undertaken criminal activity”.                       Accordingly, the

court did not clearly err in determining that the enhancement

applied based on guns being found in the same location where drugs

or drug paraphernalia were stored or by inferring that Rangel

should have foreseen his coconspirator’s possession of a dangerous

weapon.       See    Hooten,      942    F.2d          at   882;   United     States     v.

Aguilera-Zapata, 901 F.2d 1209, 1215 (5th Cir. 1990).

     Even if Rangel had been able to demonstrate clear error, the

district court was required to impose the statutory minimum of,

inter   alia,   120      months    of    imprisonment.             See   21    U.S.C.     §

841(b)(1)(A).       Accordingly, any error would have been harmless.

Williams v. United States, 503 U.S. 193, 203 (1992) (holding remand

is inappropriate where “the error did not affect the district

court’s selection of the sentence imposed”).



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       Rangel   also   asserts   his       sentence   is   unconstitutionally

excessive due to his minor role in the conspiracy and because of

his age.   Because Rangel failed to so object in district court, our

review is only for plain error.            See United States v. Howard, 220

F.3d 645, 647 (5th Cir. 2000).         Under that standard, Rangel bears

the burden of showing there is a “clear” or “obvious” error that

affected his substantial rights.            See United States v. Olano, 507

U.S. 725, 732 (1993).     If he is able to do so, we have discretion

to correct the error if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings”.                  Id.

(internal citations and quotation marks omitted) (alteration in

original).

       In comparison to the life sentences imposed in Rummel v.

Estelle, 445 U.S. 263 (1980), on a non-violent criminal pursuant to

a recidivist statute, and in Harmelin v. Michigan, 501 U.S. 957

(1991), on an offender with no criminal history for possessing 672

grams of cocaine, the 120-month sentence imposed here is not

grossly disproportionate to the offense of violating 21 U.S.C. §

841.    See Smallwood v. Johnson, 73 F.3d 1343, 1347 (5th Cir.),

cert. denied, 519 U.S. 883 (1996). Therefore, Rangel has failed to

show an error, much less a clear or obvious one.

                                                                  AFFIRMED




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