United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51157
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LEE WILSON; JOSEPH THOMAS FELICE, JR.,
Defendants-Appellants.
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Appeals from the United States District Court
for the Western District of Texas
(P-02-CR-173-1)
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Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendants-Appellants Robert Lee Wilson and Joseph Thomas
Felice, Jr., appeal from the judgments entered after their jury
trial, in which they were found guilty of two counts of aiding and
abetting the possession with the intent to distribute controlled
substances. In addition, Wilson (who was also found guilty of
using and carrying a firearm in relation to a drug trafficking
offense) appeals his conviction for the firearm offense. Felice
appeals his sentence as well as his conviction.
*
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this opinion should not be published and is not precedent except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.
Wilson argues that because he and his gun were not present in
the same vehicle as the drugs, the evidence was insufficient to
sustain his conviction for using or carrying a firearm in relation
to a drug trafficking offense. Wilson possessed the gun in the
van, the last vehicle in the three-vehicle caravan, which followed
behind and watched over the middle vehicle, the RV in which the
controlled substances were transported. The van traveled
approximately five minutes behind the RV. A jury could have found
that the gun was used to protect the load. Thus, the court’s
denial of Wilson’s motion for an acquittal was not erroneous. See
United States v. Tolliver, 116 F.3d 120, 126 & n.6 (5th Cir. 1997).
Felice argues that the district court erred when it failed to
resolve a factual dispute regarding the role of Wilson’s gun before
applying to Felice a two-level upward adjustment under U.S.S.G.
§ 2D1.1(b)(1). He argues that by failing to resolve this dispute,
the district court did not comply with FED. R. CRIM. P. 32(c)(1).
Felice presented no rebuttal evidence demonstrating that the
information relied on by the court was materially untrue,
inaccurate, or unreliable. The court was therefore free to adopt
the findings in the PSR, as it did, without further inquiry or
explanation. See United States v. Glinsey, 209 F.3d 386, 393 (5th
Cir. 2000). Consequently, the judgments of the district court are
AFFIRMED.
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