                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                       REVISED JUNE 30, 2006
                                                              June 27, 2006
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk


                           No. 03-50400
                         Summary Calendar




UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS GARZA, JR.,
also known as Jose Luis Garza,

                                    Defendant-Appellant.


                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                         No. W-00-CR-94-2
                       --------------------



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Garza, Jr., appeals his jury conviction of, and sentence

for, possession with intent to distribute five kilograms or more of

cocaine in violation of 21 U.S.C. § 841(a)(1).     He contends the

evidence was insufficient to sustain the verdict. Specifically, he

argues that the government’s case rested solely on a single finger-

     *
       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this opinion should not be published and is not precedent except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. 03-50400
                                -2-

print found on one of the nine packages of cocaine seized on Sep-

tember 23, 2000, and on Homero DeLeon’s incredible testimony.

Garza further argues that he presented a plausible explanation as

to how and why his fingerprint was found on the package of cocaine

and, thus, the evidence gives equal or nearly equal circumstantial

support to a theory of innocence.

     Viewed in the light most favorable to the verdict, the evi-

dence was sufficient to establish that Garza knowingly possessed

with intent to distribute five kilograms or more of cocaine.    Ho-

mero DeLeon testified that the 8.9 kilograms of cocaine seized from

Ricardo DeLeon’s van belonged to Garza, that the cocaine was stored

in Garza’s house, and that Garza packaged and loaded the cocaine

into the van. Homero DeLeon’s testimony was not incredible or fac-

tually insubstantial on its face and, further, was corroborated in

part by the fact that Garza’s fingerprint was found on one of the

packages.

     The jury’s acquittal of Garza on the conspiracy count did not

necessarily imply that the jury found Homero DeLeon incredible.

See United States v. Pena, 949 F.2d 751, 755 (5th Cir. 1991); Unit-

ed States v. Scurlock, 52 F.3d 531, 537 (5th Cir. 1995).   Moreover,

although Garza provided an explanation as to how his fingerprint

could have gotten on the package, the jury’s decision to accept or

reject this explanation was a credibility determination that we

will not disturb.   See United States v. Runyan, 290 F.3d 223, 240

(5th Cir. 2002).
                           No. 03-50400
                                -3-

     Garza claims the district court erred in determining the quan-

tity of drugs attributable to him as relevant conduct without mak-

ing the particularized findings required by U.S.S.G. § 1B1.3. Spe-

cifically, he argues that the calculation in the presentence report

was based solely on Homero DeLeon’s disbelieved trial testimony and

Ricardo DeLeon’s incredible and uncorroborated statements to law

enforcement officers before he absconded.    Garza also avers that

the district court failed to make particularized findings that he

was part of a jointly undertaken criminal activity and that his co-

defendants’ acts were reasonably foreseeable.

     Contrary to Garza’s contention, the district court did not

include third-party conduct in determining the quantity of drugs

attributable to him as relevant conduct and, thus, it was not re-

quired to make findings regarding a jointly undertaken criminal

activity. Further, although Garza argues that the relevant conduct

offenses were based on Homero DeLeon’s and Ricardo DeLeon’s in-

credible and uncorroborated statements, Garza did not submit any

rebuttal evidence to refute the information in the presentence re-

port. Ricardo DeLeon’s statements were corroborated in part by Ho-

mero DeLeon’s statements to law enforcement officers and Homero

DeLeon’s testimony at trial.   Therefore, the district court’s de-

termination of relevant conduct was plausible in light of the rec-

ord read as a whole, and Garza has not demonstrated clear error.

     Garza contends that the district court clearly erred when it

increased his base offense level for possession of a dangerous
                            No. 03-50400
                                 -4-

weapon under U.S.S.G. § 2D1.1(b)(1).       The court’s determination

that it was not clearly improbable that the weapon seized from Ri-

cardo DeLeon’s vehicle was connected to the offense of conviction

was plausible in light of the record read as a whole.   Officer Hugh

Curry testified that Garza was a passenger in the van in which 8.9

kilograms of cocaine and a .380 caliber handgun were found.    Garza

admitted at trial that he knew the weapon was in the van.

     Further, it is not plainly improbable that the weapon was used

to protect Garza’s drug trafficking activities.    See United States

v. Westbrook, 119 F.3d 1176, 1193 (5th Cir. 1997) (observing that

guns are “tools of the trade” for those engaged in the drug bus-

iness). Therefore, the government established a sufficient tempor-

al and spatial relationship among the weapon, the drug trafficking

activity, and Garza, and thus the district court did not clearly

err when it increased Garza’s base offense level for possession of

a dangerous weapon under § 2D1.1(b)(1). See United States v. East-

land, 989 F.2d 760, 770 (5th Cir. 1993).

     Garza argues that the district court violated his Sixth Amend-

ment right to a jury trial when it enhanced his sentence based on

facts that were neither admitted by him nor found by a jury beyond

a reasonable doubt.   Because Garza’s objections to the presentence

report did not sufficiently apprise the district court that he was

raising a claim of constitutional error, his Sixth Amendment claim

is not preserved, so our review is for plain error.       See United
                             No. 03-50400
                                  -5-

States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126

S. Ct. 43 (2005).

       The district court erred when it sentenced Garza pursuant to

a mandatory guidelines system based on its factual findings as to

the drug-quantity calculation and dangerous-weapon enhancement.

See United States v. Booker, 543 U.S. 220, 244 (2005); United

States   v.   Valenzuela-Quevedo,   407   F.3d   728,   733   (5th   Cir.),

cert. denied, 126 S. Ct. 267 (2005).       Garza has not demonstrated,

however, that this plain error affected his substantial rights.

       The record gives no indication that the district court would

have reached a different result under an advisory guidelines sys-

tem.    Although the court sentenced Garza at the lowest end of the

guideline range, it found no reason to depart from that range.          See

United States v. Bringier, 405 F.3d 310, 317 & n.4 (5th Cir.),

cert. denied, 126 S. Ct. 264 (2005).        Given the lack of evidence

indicating that the court would have reached a different conclu-

sion, Garza has failed to establish plain error.          See Mares, 402

F.3d at 520-22.

       AFFIRMED.
