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

                                                                            FILED
                                                                         October 13, 2008
                                     No. 08-40044
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

ANTHONY DOUGLAS

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                           USDC No. 1:06-CR-193-ALL


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Anthony Douglas appeals from conviction after a bench trial of possession
of a firearm in furtherance of a drug trafficking crime, namely, the possessing
with intent to distribute a Schedule I controlled substance: 3,4 Methylenedioxy-
methamphetamine/MDMA (“ecstasy”). Douglas argues that the Government did
not prove that he knowingly possessed ecstasy with the intent to distribute it,
and also failed to prove that he possessed the firearm in furtherance of the drug
crime. We disagree with both assertions and AFFIRM.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40044

      Our standard for reviewing the sufficiency of the evidence in a bench trial
is “whether the finding of guilt is supported by substantial evidence, i.e.,
evidence sufficient to justify the trial judge, as the trier of fact, in concluding
beyond reasonable doubt that the defendant is guilty.” United States v. Turner,
319 F.3d 716, 720 (5th Cir. 2003) (internal citation and quotation marks
omitted). “Evidence is sufficient to support a conviction if any rational trier of
fact could have found that the evidence established guilt beyond a reasonable
doubt.” United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000),
amended in part, 226 F.3d 651 (5th Cir. 2000). We neither weigh evidence nor
evaluate the credibility of witnesses; instead, we review all the properly-
admitted evidence from the perspective most favorable to the government and
permit the trial court to draw all reasonable inferences. Turner, 319 F.3d at
720-21.
      First, we evaluate the evidence regarding the underlying drug trafficking
crime. See 18 U.S.C. § 924(c)(1)(A). On April 10, 2006, Douglas was driving
from Houston, Texas to New Orleans, Louisiana, on the portion of Interstate 10
that traverses Jefferson County, Texas. The vehicle he was driving had been
rented by his passenger, Gregory Green. An officer from the county sheriff’s
department stopped the vehicle for speeding.        The officer testified that he
smelled freshly burned marihuana as he neared the vehicle.            During the
questioning of Douglas and Green, the officer was given permission to search the
vehicle. In the console between the front seats, 586 ecstasy tablets were
discovered. A fully loaded Glock pistol was directly on top of the tablets.
      Douglas and Green were given warnings of their rights. See Miranda v.
Arizona, 384 U.S. 436 (1966). Both Douglas and Green responded to questions.
The evidence, including Green’s admissions, indicates that Green was
responsible for the drugs. Douglas claimed ownership of the pistol and had a
receipt indicating that it was purchased, with cash, two days before his arrest.
Green told the officers that the tablets belonged to him. Although Douglas now

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argues that Green hid the ecstasy tablets with Douglas’s pistol without
Douglas’s knowledge, Douglas did not make this claim in his post-Miranda
interview. Also, while Douglas now argues that he did not know that the tablets
were in the vehicle, he did not express surprise in his post-Miranda interview
regarding the officer’s discovery of the tablets in the vehicle. Nor did he express
surprise that the pistol that he owned was hidden with the tablets. In his post-
Miranda interview, Douglas also suggested that he would participate in
arranging a drug deal in exchange for leniency.
      What Douglas said and what he did not say both support an inference that
he had knowledge of drug trafficking and was a willing participant with Green.
It is true that, at trial, Douglas testified that he lied when he made these and
other incriminating statements.     As already noted, though, credibility choices
regarding testimony are for the trial court.       Turner, 319 F.3d at 720-21.
Undisputed facts coupled with circumstantial evidence can establish knowing
possession of drugs with the requisite intent to distribute. See United States v.
Infante, 404 F.3d 376, 385 (5th Cir. 2005); United States v. Galvan-Garcia, 872
F.2d 638, 640 (5th Cir. 1989).      Among the usable circumstances of guilty
knowledge is the lack of surprise when contraband is found. United States v.
Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).
      Viewed in the light favorable to the conviction, the evidence was sufficient
to establish knowing possession. Regarding the requisite intent to distribute, the
tablets contained an imprint that was designed to provide the end user with
information regarding potency. Also, the arresting officer testified that the
amount of ecstasy tablets that was seized in this case is an amount that is
consistent with distribution. See United States v. Cartwright, 6 F.3d 294, 299
(5th Cir. 1993) (stating that intent to distribute can be inferred from the large
quantity of drugs involved). Thus, the evidence was also sufficient to establish
that Douglas knowingly possessed ecstasy with the intent to distribute it.



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      The second issue regarding evidentiary sufficiency concerns possession of
the firearm “in furtherance of” drug trafficking activity under 18 U.S.C. §
924(c)(1)(A). The arresting officer testified that Douglas’s pistol, which was fully
loaded and ready to use, was lying directly on top of the ecstasy. He further
testified that the manner in which he found the pistol and the ecstasy is
consistent with the use of a weapon in furtherance of a drug trafficking crime.
      An accessible pistol that is loaded and ready to use provides protection
against anyone who attempts to interfere with the drug trafficker at any stage
in his transaction. See Ceballos-Torres, 218 F.3d at 412. The close proximity of
Douglas’s pistol to the ecstasy tablets indicates that the weapon was to be used
to protect the drugs or would be accessible during a transaction to provide
protection in case the drug deal went sour. See id.; see also United States v.
Charles, 469 F.3d 402, 406-07 (5th Cir. 2006). Finally, purchasing the weapon
contemporaneously with beginning the drive to Louisiana to transport drugs for
distribution adds to the inference of a nexus between the weapon and the drugs.
      This circumstantial evidence was sufficient to establish that Douglas
possessed a firearm in furtherance of drug trafficking activity.
      The judgment of the district court is AFFIRMED.




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