          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                 FILED
                                                                January 5, 2009
                               No. 07-41121
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

STEPHEN RAY RIVKIN

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                          USDC No. 4:07-CR-41-ALL


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Stephen Ray Rivkin appeals his conviction and
sentence imposed following his jury conviction on one count of possession of a
firearm by a felon and one count of possession of a firearm by an unlawful user
of a controlled substance. We affirm.
      Rivkin contends that the evidence was insufficient to prove that the guns
he possessed had been in interstate commerce. When the sufficiency of the
evidence has been contested in a Rule 29 motion in the district court, we review

      *
      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should not be published and is not precedent except under the limited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. 07-41121

the sufficiency of the evidence to determine “whether a rational juror could have
found the elements of the offense proved beyond a reasonable doubt.” United
States v. Kay, 513 F.3d 432, 452 (5th Cir. 2007) (internal quotations and citation
omitted), cert. denied, 129 S. Ct. 42 (2008). The evidence is viewed in the light
most favorable to the government, and all reasonable inferences and credibility
choices are made in support of the verdict. Id.
      In his motion for acquittal, Rivkin did not assert that the government had
failed to prove that the firearms in question had traveled in interstate
commerce. He has thus waived his objection to the sufficiency of the evidence
on that element. See United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002).
Consequently, his claim that the evidence was insufficient to establish an
interstate nexus for the firearms is reviewed only to determine whether “the
record is devoid of evidence pointing to guilt.” Id. at 885. His claim fails under
any standard.
      An agent of the Bureau of Alcohol, Tobacco, and Firearms (BATF) testified
that he was trained as an expert in the interstate commerce of firearms and
that, based on the names of the manufacturers marked on the guns identified in
the indictment, they had traveled in interstate commerce. As this testimony was
unchallenged, we view it in the light most favorable to the verdict. In that
perspective we conclude that the evidence was sufficient to enable any
reasonable juror to conclude that the guns had traveled in interstate commerce
before coming into Rivkin’s possession.
      Rivkin also contends that the government failed to prove that he was a
user of controlled substances. He asserts that his former girlfriend’s testimony
to that effect was “completely unreliable.” As this contention was made in the
district court, we review it to determine whether a rational juror could have
found this fact beyond a reasonable doubt. See Kay, 513 F.3d at 452. The jury
evidently believed the ex-girlfriend, and we review the jury’s credibility choices
in the light that supports the jury verdict. See id. Moreover, a BATF agent

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testified that Rivkin admitted being a marijuana user. Any reasonable juror
could have found that Rivkin had illegally used controlled substances.
      Rivkin contends further that the district court erred when it declined to
reduce his offense level on grounds that his firearms were possessed solely for
lawful collection or sporting purposes. Section 2K2.1(b)(2) of the advisory
Sentencing Guidelines provides for a base offense level of six if a defendant
“possessed all ammunition and firearms solely for lawful sporting purposes or
collection, and did not unlawfully discharge or otherwise unlawfully use such
firearms or ammunition.” § 2K2.1.(b)(2). We review the court’s factual finding
that a gun was not possessed solely for a legitimate sporting purpose for clear
error. Rivkin was required to show his entitlement to the lower offense level by
a preponderance of the evidence. United States v. Shell, 972 F.2d 548, 550 (5th
Cir. 1992); see United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th Cir.
2005). A factual finding is not clearly erroneous if it is plausible in light of the
record as a whole. United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
      The sentencing court found Rivkin to be incredible in light of evidence
showing that several guns were loaded and accessible and that one gun was
under a mattress. Although Rivkin asserted that some of the guns were for
hunting, he conceded that he did not own a hunting license The district court
did not commit clear error by finding that Rivkin was incredible or that not all
of the guns were possessed for lawful sporting purposes or collecting. See Shell,
972 F.2d at 553.
      Rivkin next contends that his offense level should not have been increased
for obstruction of justice. Section 3C1.1 of the Guidelines provides for a two-level
increase in the offense level if “the defendant willfully . . . attempted to obstruct
or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction.”          § 3C1.1.
Examples of obstruction include “threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly or indirectly,

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or attempting to do so.” Id., comment. (n.4(a)). We review determinations of
obstruction of justice for clear error. United States v. Storm, 36 F.3d 1289, 1295
(5th Cir. 1994).
      Prior to trial, Rivkin sent an email to a third party asking her to tell his
former girlfriend to contact him. Rivkin knew that his former girlfriend had
alerted the police about his drug and weapon possession and that she would be
a witness for the government.       The district court found that Rivkin had
threatened the girlfriend in the past and that she was extremely frightened to
know that Rivkin was trying to contact her. The court concluded that “there was
enough evidence to show an attempt to obstruct justice in trying either to contact
this witness or let it be known that there was an intention to do so in an effort
to intimidate the [witness].” As the court’s conclusion was plausible in light of
the record as a whole, it was not clearly erroneous. See Huerta, 182 F.3d at 364.
      Rivkin has shown no reversible error in his conviction or sentence. The
judgment of the district court is, in all respects,
AFFIRMED.




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