                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                December 2, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-40399
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

RAMON BAZAN, III,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 2:03-CR-230-1
                      --------------------

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges

PER CURIAM:*

     Ramon Bazan, III, appeals his jury conviction and sentence

for possession of a firearm by a convicted felon in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2).

     Bazan contends that the Government failed to prove beyond a

reasonable doubt that he knowingly possessed a firearm.       Because

Bazan did not move for a judgment of acquittal in the district

court,“our review is limited to determining whether there was a

manifest miscarriage of justice, that is, whether the record is


     *
       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this opinion should not be published and is not precedent except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. 04-40399
                                  -2-

devoid of evidence pointing to guilt.”      United States v. Delgado,

256 F.3d 264, 274 (5th Cir. 2001) (internal quotation marks and

citation omitted).   Viewing the evidence in the light most

favorable to the Government and giving the Government the benefit

of all reasonable inferences and credibility choices, the record

is not devoid of evidence that Bazan knowingly possessed a

firearm.   See United States v. Glavan, 949 F.2d 777, 783 (5th

Cir. 1991) (internal quotation marks and citation omitted).

     Bazan also contends that the district court deprived him of

his constitutional right to present a defense by limiting his

closing argument and forcing him to choose between his right not

to have an unconstitutionally obtained statement introduced and

his right to put the Government’s case to meaningful adversarial

testing via closing argument on the Government’s faulty

investigation of the case.    Because Bazan did not object to the

alleged error in the district court, this court reviews for plain

error.   See United States v. Calverley, 37 F.3d 160, 162 (5th

Cir. 1994) (en banc).

     The record does not support Bazan’s assertion that the

district court limited his closing argument and forced him to

give up one constitutional right to enforce another.     Therefore,

Bazan cannot show plain error.    See Calverley, 37 F.3d at 162-64.

     Bazan further contends that his due process rights were

violated when Officer Carlos Muniz presented false testimony at

trial and the Government relied on this false testimony in its
                            No. 04-40399
                                 -3-

closing argument.    Because Bazan did not object to the alleged

error in the district court, this court reviews for plain error.

See Calverley, 37 F.3d at 162.

     The record does not support Bazan’s claim that Officer Muniz

testified falsely.    Further, assuming arguendo that Officer Muniz

testified falsely and the Government knew his testimony was

false, Bazan cannot establish that the false testimony was

material.   Therefore, Bazan cannot show plain error.    See

Calverley, 37 F.3d at 162-64; United States v. Mason, 293 F.3d

826, 828 (5th Cir. 2002).

     Finally, Bazan contends that the armed career criminal

sentencing enhancement under 18 U.S.C. § 924(e)(1) violated his

constitutional rights to an indictment by a grand jury and to a

trial by jury.   He also contends that Blakely v. Washington, 124

S. Ct. 2531 (2004) applies in determining his sentence.

     As Bazan concedes, these issues are foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224 (1998), and

United States v. Piniero, 377 F.3d 464, 473 (5th Cir.), petition

for cert. filed (U.S. July 14, 2004).

     Accordingly, the district court’s judgment is AFFIRMED.
