               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 07-1465

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                             ANDRE ROSADO,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. F. Dennis Saylor, U.S. District Judge]


                                 Before

                    Torruella, Lynch and Lipez,
                          Circuit Judges.



     Mark E. Howard and Kacavas Ramsdell & Howard, PLLC, on brief
for appellant.
     Leah B. Foley, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for appellee.



                            April 14, 2008
          Per Curiam.   After being convicted by a jury of various

drug and gun offenses and after being sentenced to 30 years'

imprisonment, defendant appeals from his conviction and sentence.

As to his conviction, he argues that the evidence was insufficient

to convict him of two counts in the indictment.           As to his

sentence, he disputes the court's finding that the drug involved

was crack cocaine as opposed to some other form of cocaine base,

and he argues that the sentence was longer than necessary to serve

the purposes of sentencing and was inadequately explained. For the

reasons discussed below, we affirm the conviction and sentence.

          Defendant was initially indicted on a single count of

distributing at least five grams of crack cocaine, in violation of

21 U.S.C. § 841(a)(1), and aiding and abetting others in doing so,

in violation of 18 U.S.C. § 2.         That indictment arose from a

"controlled buy" by an undercover agent on February 23, 2005, and

was sealed pending defendant's arrest.

          On April 6, 2005, in the course of defendant's arrest on

that   initial   indictment,   another   incident   occurred,   which

ultimately gave rise to a superseding indictment, adding three

additional counts:   possession with intent to distribute at least

five grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1);

possession of a firearm "in furtherance of" that drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1); and possession of

a firearm after being convicted of another felony, in violation of

                                 -2-
18 U.S.C. § 922(g)(1).     A second superseding indictment later

eliminated all references to "crack cocaine" from the drug counts,

charging only that the drug involved was "cocaine base."

          After a four-day jury trial, defendant was convicted on

all four counts.    He was subsequently sentenced to 30 years'

imprisonment, five years below the applicable guideline sentencing

range.   We assume the parties' familiarity with the underlying

facts and so will not rehearse them here, except in the context of

discussing the legal issues raised on appeal.

          Defendant challenges the sufficiency of the evidence

supporting the jury's verdict on three points.1    With respect to

the charge of possession of cocaine base with intent to distribute,

arising from the incident of April 6, 2005, he argues that there

was insufficient evidence that he knew that the drugs were in the

car or that he intended to distribute them.     With respect to the

charge of possession of a firearm "in furtherance of" that drug

charge, he argues that there was insufficient evidence that the

firearms were possessed "to advance or promote" the drug offense.

United States v. Grace, 367 F.3d 29, 35 (1st Cir. 2004).

          "The familiar standard that applies to sufficiency-of-

the-evidence challenges requires that a court 'determine whether,



     1
      He expressly concedes that the evidence was sufficient to
prove beyond a reasonable doubt that he distributed cocaine base on
February 23, 2005, and that he was a felon in possession of a
firearm on April 6, 2005.

                               -3-
after assaying all the evidence in the light most amiable to the

government, and taking all reasonable inferences in its favor, a

rational factfinder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of the

crime.'"     United States v. Dwinells, 508 F.3d 63, 72 (1st Cir.

2007) (quoting United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.

1994)).     "When the record is fairly susceptible of two competing

scenarios, the choice between those scenarios ordinarily is for the

jury."     Id. at 74.   Accordingly, if "the evidence, taken in its

entirety,    supports   the   judgment    of   conviction   .   .   .,   '[the

government] need not rule out other hypotheses more congenial to a

finding of innocence.'"       Id. (quoting United States v. Gifford, 17

F.3d 462, 467 (1st Cir. 1994)).

            Under those standards, defendant's sufficiency challenge

fails on all three points. The jury could have reasonably inferred

that defendant knew that the drugs were in the car from the

uncontroverted evidence that he was previously involved in drug

dealing, United States v. Spinosa, 982 F.2d 620, 628-29 (1st Cir.

1992), including the incident of February 23, 2005; that he was the

driver and sole occupant of the car in which the drugs were found,

United States v. Sanchez, 943 F.2d 110, 115 (1st Cir. 1991); that

the drugs were found right in front of the driver's seat, United

States v. Zavala Maldonado, 23 F.3d 4, 8 (1st Cir. 1994); and that

when the police confronted him and directed him to pull over, he


                                    -4-
attempted to flee, first by car and then on foot, and then

violently struggled to avoid arrest, showing his awareness of

guilt, United States v. Isler, 429 F.3d 19, 25 (1st Cir. 2005).

See generally United States v. Robinson, 473 F.3d 387, 399 (1st

Cir. 2007) (holding that knowing possession may be inferred from

circumstantial evidence).             The jury could well have found that

evidence to outweigh the evidence pointing the other way--primarily

that the car was registered to someone else--particularly since

defendant was known to frequent the address to which the car was

registered.

               The jury could also have reasonably inferred that the

drugs found in the car--44.3 grams of cocaine base, packaged in the

form of twelve "eight balls"2--were intended for distribution

rather than personal use.         There was expert testimony that such a

large       amount,   packaged   in    that   manner,   would   ordinarily   be

possessed by a dealer rather than an end-user.              United States v.

García-Carrasquillo, 483 F.3d 124, 130 n.12 (1st Cir. 2007).             That

inference is further supported by the presence in the car of guns,

United States v. Andrade, 94 F.3d 9, 13 (1st Cir. 1996), which, the

expert testimony showed, are often used by drug dealers to avoid

interference with drug transactions, and by the absence of any

implements with which to smoke the crack, id.


        2
      There was testimony at trial that an eight ball weighs about
one-eighth of an ounce, 3.5 grams, and that the street price for an
eight ball in the area at the time was about $150 to $200.

                                        -5-
             Finally, there was ample evidence from which the jury

reasonably could have inferred that defendant possessed one or two

guns "in furtherance" of the April 6th drug offense.                 Although

"mere presence" of the guns at the scene of the drug offense is not

sufficient, United States v. Delgado-Hernandez, 420 F.3d 16, 25

(1st Cir. 2005), there was more here, albeit circumstantial.                In

particular, the evidence showed that both guns were loaded and

located in close proximity to the defendant and to the drugs and

therefore could easily have been used to resist any effort, by the

police or others, to interfere with the intended drug distribution.

See, e.g., United States v. Robinson, 473 F.3d at 399-400 (finding

such evidence sufficient to show that a gun was possessed "in

furtherance of" another crime);          United States v. Felton, 417 F.3d

97,   105,   106   (1st   Cir.   2005)   (same).    In   addition,    as   the

prosecution argued at trial, the jury could have inferred that the

guns were possessed in connection with the April 6th drug offense

from the evidence that defendant also possessed a gun during the

February 23rd drug transaction and from the expert testimony that

drug dealers commonly have guns to protect the drugs they intend to

distribute.

             Defendant's    sentencing      challenges    fail   as    well.

Although, on appeal, he faults the district court's finding that

the substance involved in the drug offenses was crack, as opposed

to some other form of cocaine base, no such argument was made at


                                     -6-
sentencing. Accordingly, that finding is reviewable only for plain

error.     No error, plain or otherwise, occurred.        In making its

findings, the district court permissibly relied on the presentence

report, to which defendant posed no relevant objection.             United

States v. Jimenez, 512 F.3d 1, 7 (1st Cir. 2007).                 And that

report's repeated statements that the substance was crack were, in

turn, amply supported by competent testimony at trial that the

substance was off-white and chunky and therefore appeared to be

crack.   See, e.g., United States v. Brown, 450 F.3d 76, 80-81 (1st

Cir. 2006).    Moreover, any error was not sufficiently prejudicial

to satisfy the plain error standard, since defendant's guideline

range resulted not from the nature of the substance involved but

from his status as a career offender, which defendant did not

challenge below or on appeal.       Jimenez, 512 F.3d at 8.

            Nor   was   the    ultimate    sentence    procedurally       or

substantively unreasonable under the standards articulated by this

court in United States v. Jiménez-Beltre, 440 F.3d 514 (1st Cir.

2006)(en banc), and, more recently, by the United States Supreme

Court in Rita v. United States, 127 S. Ct. 2456 (2007), and Gall v.

United States, 128 S. Ct. 586 (2007). The district court expressly

addressed--and    adopted,    in   part--defendant's   argument    that    a

bottom-of-guidelines sentence of 35 years was longer than necessary

to serve the purposes of sentencing set forth in 18 U.S.C. §

3553(a).    It was for that reason that the court imposed a sentence


                                    -7-
five years below the guideline range.      The court explained its

decision not to vary further as based, "first and foremost," on its

belief that a very long sentence was necessary to protect the

public, given defendant's violent criminal record, which included

a conviction for conspiracy to commit murder, in which defendant

participated in beating the victim to death.     Although the court

indicated that its decision was also influenced by the guideline

range, particularly the career-offender guideline, consideration of

that range remains    not only permissible but required.   Gall, 128

S. Ct. at 596; Rita, 127 S. Ct. at 2467; Jiménez-Beltre, 440 F.3d

at 518. Since its ultimate sentence was below the guideline range,

the court obviously did not deem the guidelines in general or the

career offender guideline in particular to be mandatory.     To the

extent that defendant quibbles with the weight afforded to the

guidelines as opposed to other factors, such balancing, absent

abuse of its discretion, is for the district court.    Gall, 128 S.

Ct. at 597-98; United States v. Dixon, 449 F.3d 194, 205 (1st Cir.

2006).   Seeing no such abuse under the circumstances presented

here, we affirm the sentence.

          Affirmed.    See 1st Cir. R. 27.0(c)




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