     Case: 14-50815      Document: 00513198030         Page: 1    Date Filed: 09/17/2015




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

                                                                                  FILED
                                                                            September 17, 2015
                                    No. 14-50815
                                  Summary Calendar                             Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE RANGEL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:13-CR-33-1


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Jose Rangel was found guilty of possessing child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In this appeal, he
challenges the sufficiency of the evidence that he knew the materials in his
possession contained child pornography, as well as the district court’s exclusion
of testimony relating to his prior traumatic brain injury, which he contends
affected his ability to appreciate the illegal nature of the pornography he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-50815    Document: 00513198030     Page: 2   Date Filed: 09/17/2015


                                 No. 14-50815

possessed. He further challenges the sufficiency of the evidence of the required
interstate commerce nexus, which consisted of a stipulation that the storage
devices on which the child pornography was located had been manufactured in
and shipped from Asia. He correctly concedes, however, that this challenge is
foreclosed by our decision in United States v. Dickson, 632 F.3d 186, 190 (5th
Cir. 2011).
      Our review of the record satisfies us that the evidence supports Rangel’s
conviction.   Federal agents downloaded four videos containing child
pornography from Rangel’s internet protocol address through a file-sharing
program that was last accessed on his computer the same month. Pursuant to
a search warrant, at least six child pornography videos were located on the
external hard drive of the computer in Rangel’s bedroom. Rangel lived alone
and told investigators that his son was the only other occasional user of his
computer. Expert testimony was offered that the manner in which Rangel
organized the child pornography videos in multiple layers of subfolders was
typical of someone who was aware of their illegal nature and sought to hide
them from public view. Moreover, anyone accessing those subfolders would
have readily seen the names of the videos, which clearly indicated child
pornography. Viewing this evidence in the light most favorable to the verdict,
we conclude that a rational trier of fact could have found beyond a reasonable
doubt that Rangel knowingly possessed child pornography. See United States
v. Ragsdale, 426 F.3d 765, 770-71 (5th Cir. 2005).
      Rangel asserts that the evidence lends itself to an equally reasonable
construction that he did not know the videos on his external hard drive
contained child pornography. However, this court, “faced with a record of
historical facts that supports conflicting inferences must presume—even if it
does not affirmatively appear in the record—that the trier of fact resolved any



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                                 No. 14-50815

such conflicts in favor of the prosecution, and must defer to that resolution.”
United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir.) (internal
quotation marks and citation omitted), cert. denied, 135 S. Ct. 170 (2014).
Accordingly, the fact that the jury could reasonably have construed the
evidence so as to find Rangel not guilty does not per se render its decision to
convict him based on that same evidence irrational. See United States v.
Burton, 126 F.3d 666, 677 (5th Cir. 1997); United States v. Montes, 602 F.3d
381, 388 (5th Cir. 2010).
      We next address Rangel’s contention that the district court improperly
excluded relevant testimony by him and his sister showing that, as a result of
a previous severe head injury, he had a diminished ability to perceive that the
titles of some of the videos he possessed were indicative of child pornography.
We review a district court’s ruling excluding evidence for abuse of discretion.
United States v. Arledge, 553 F.3d 881, 892 (5th Cir. 2008). Relevant evidence
is generally admissible at trial. FED. R. EVID. 402. Irrelevant evidence is
inadmissible. Id. Evidence is relevant if it “has any tendency to make a fact
more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” FED. R. EVID. 401.
      After the close of evidence in the district court, defense counsel made a
proffer of the anticipated testimony by Rangel and his sister, and our review
of the district court’s evidentiary ruling is limited to the substance of that
proffer. See United States v. Wade, 356 F. App’x 704, 710 n.4 (5th Cir. 2009).
The extent of the proffered testimony is that Rangel suffered a severe head
injury in a 2010 motorcycle accident, from which he spent approximately four
months recovering, including 22 days in a coma, two months in a hospital, and
six additional weeks relearning basic life functions.     Rangel has made no
showing that the proffered testimony would have aided the jury in resolving



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                                No. 14-50815

whether, due to his brain injury, Rangel was able at the relevant time to
recognize the titles of certain videos as indicative of child pornography.
Therefore, we conclude that the district court did not abuse its discretion in
excluding the complained-of testimony. See Arledge, 553 F.3d at 892.
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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