                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
               For the First Circuit

No. 04-1820

                              UNITED STATES,

                                 Appellee,

                                      v.

                    THOMAS PAUL BRICHETTO, JR.,

                         Defendant, Appellant.


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

         [Hon. Gene Carter, Senior U.S. District Judge]


                                   Before

                         Selya, Circuit Judge,
                    Stahl, Senior Circuit Judge,
                      and Lynch, Circuit Judge.


     Bruce M. Merrill for appellant.
     F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.



                           February 15, 2005
             LYNCH,   Circuit   Judge.    A   jury   convicted   Thomas   P.

Brichetto, Jr. of bank robbery and aiding and abetting bank robbery

(Count One), and using, carrying and brandishing a firearm during

and in relation to the commission of a violent felony (Count Two),

see 18 U.S.C. §§ 2, 924(c)(1)(A)(ii), 2113(a), 2113(d).           The jury

found that on December 12, 2001, he had, with three accomplices,

robbed at gunpoint a branch of the Gorham Regional Federal Credit

Union in Gorham, Maine, of $7,079.        The jury also acquitted him on

a charge of being a felon in possession of a firearm (Count Three),

see id. §§ 922(g)(1), 924(e).       Largely based on what he considers

to be inconsistency in the jury verdicts, Brichetto appeals from

his conviction, saying he should have been granted a directed

verdict or given a new trial.

             His argument is that since the government introduced

evidence of only one firearm in this case -- a .25 caliber Mauser

semiautomatic pistol -- "The jury's verdict of Not Guilty on Count

Three cannot be reconciled with the Guilty verdicts on Counts One

and Two."     He argues that the jury necessarily found a failure of

proof as to an essential element of the crimes charged in Counts

One and Two,1 namely: the use of the firearm in the robbery.


     1
         The armed robbery statute cited in Count One provides:

             (a) Whoever, by force and violence, or by
             intimidation, takes . . . from the person or
             presence of another . . . any property or
             money or any other thing of value belonging to
             . . . any . . . credit union . . . . [and]

                                    -2-
          "[A] straightforward claim that the jury verdict is

internally   inconsistent.   .   .   .     is   essentially   unreviewable."

United States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000) (citing

United States v. Powell, 469 U.S. 57, 66 (1984), Dunn v. United

States, 284 U.S. 390, 393-94 (1932), and United States v. Lara, 181

F.3d 183, 206 (1st Cir. 1999)).          "In a single, multi-count trial,

acquittal on one or more counts does not preclude conviction on

other counts based upon the same evidence, as long as that evidence


          (d) . . . in committing, or in attempting to
          commit, any offense defined in subsection[]
          (a) . . . of this section, assaults any
          person, or puts in jeopardy the life of any
          person by the use of a dangerous weapon or
          device, shall be fined under this title or
          imprisoned not more than twenty-five years, or
          both.

18 U.S.C. § 2113 (emphasis added).         The statute cited in Count Two
provides:

          [A]ny person who, during and in relation to
          any crime of violence . . . uses or carries a
          firearm . . . shall, in addition to the
          punishment provided for such crime of violence
          . . . if the firearm is brandished, be
          sentenced to a term of imprisonment of not
          less than 7 years . . . .

18 U.S.C. § 924(c)(1)(A) (emphasis added).            The statute cited in
Count Three provides:

          It shall be unlawful for any person . . . who
          has been convicted in any court of, a crime
          punishable   by  imprisonment   for   a   term
          exceeding one year . . . to . . . possess in
          or   affecting  commerce,   any   firearm   or
          ammunition . . . .

18 U.S.C. § 922(g) (emphasis added).

                                     -3-
is legally sufficient to support a finding of guilt on the count(s)

of conviction." Id. To his credit, Brichetto, ably represented by

appointed counsel, admits this principle, but says we should factor

the acquittal into our review of the sufficiency of the evidence

and of the motion for a new trial.

            Our test, however, is the usual one for sufficiency of

the evidence.     The reviewing court "must uphold any verdict that

is 'supported by a plausible rendition of the record.'"             United

States v. Hernández, 218 F.3d 58, 64 (1st Cir. 2000) (quoting

United States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992)); see

also United States v. Castellini, 392 F.3d 35, 44 (1st Cir. 2004)

("On challenges to sufficiency of the evidence, we take all the

evidence and inferences in the light most favorable to the verdict

and   ask   whether   a   rational   factfinder   could   find,   beyond   a

reasonable doubt, that the prosecution successfully proved the

essential elements of the crime.").

            There is more than sufficient evidence in the record here

to allow a jury to find Brichetto guilty beyond a reasonable doubt

on Counts One and Two.2       The teller at the robbed bank testified

that she saw the robber pointing a "small black handgun" at her and

that he threatened to "blow [her] head off."       David Tanguay, one of

Brichetto's accomplices, testified that he obtained the gun and


      2
      The government proffers a series of reasons for explaining
why the jury might have acquitted Brichetto on Count Three, which
we need not address.

                                     -4-
brought it to Brichetto before the robbery. Tanguay said Brichetto

went into the credit union, carrying the gun.      Tanguay testified

that after the robbery, he told Brichetto to throw away the gun

during the getaway ride, and he saw Brichetto rolling down the car

window and throwing the gun away as they drove alongside an area

"[l]ike a boggy marsh."   The police were unable to recover the gun

after searching the area.    Brichetto, on Tanguay's evidence, had

the gun before and after the robbery and went into the bank with

the gun.    That left the question of whether Brichetto was the

robber the teller saw.    The teller said the robber had a gun and

wore a ski mask. Tanguay testified that Brichetto wore a "stocking

cap" on the day of the robbery.        A knit cap was recovered from

Tanguay's car, and laboratory analysis of the DNA on the hat band

showed that it matched Brichetto's DNA. Additionally, a photograph

taken from the surveillance camera inside the bank during the

robbery shows the robber wearing a knit ski cap vaulting over the

counter with an object in his hand that a jury could easily

conclude was a gun.   Indeed, the jury found by special verdict that

Brichetto had brandished a firearm in the course of the robbery.

           The fact that no gun was ever found or that the witnesses

described the gun in different ways does not mean that the evidence

was insufficient to convict.    For example, it is not uncommon for

a person who has a gun pointed at her to describe the gun as large,

even if bystanders would describe it as smaller.


                                 -5-
          For the same reasons that the evidence was sufficient

(indeed, ample), there was no abuse of discretion in denying

Brichetto's motion for a new trial.

          Brichetto has appropriately waived the Booker claim of

sentencing error he originally pursued on appeal.      See United

States v. Booker, 543 U.S. __, 125 S.Ct. 738 (2005).   Brichetto's

conviction is affirmed.




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