United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2005
Charles R. Fulbruge III
Clerk
No. 03-11155
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRIS RYAN JACKSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:00-CR-250-ALL-A
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Chris Ryan Jackson was convicted by a jury of one count of
possession with intent to distribute 30 grams of cocaine in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)(iii); one count of
carrying a firearm during and in relation to a drug trafficking
offense in violation of 18 U.S.C. § 924(c)(1); and two counts of
possession of a firearm by a felon in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Jackson appeals his sentence as
*
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this opinion should not be published and is not precedent except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. 03-11155
-2-
to all counts and his conviction on the § 924(c) count. Finding
no error, we affirm.
Jackson argues that the evidence was not sufficient to
support his conviction for possession of a firearm in furtherance
of a drug trafficking crime under 18 U.S.C. § 924(c). As Jackson
did not renew his Rule 29 motion for acquittal, our review is
limited to determining whether there is a manifest miscarriage of
justice, meaning that the “the record must be devoid of evidence
of guilt or the evidence must be so tenuous that a conviction is
shocking.” See United States v. Avants, 367 F.3d 433, 449 (5th
Cir. 2004).
Jackson’s contention that the evidence did not show he was
guilty of a drug trafficking crime is without merit. Jackson
does not separately challenge his conviction for possession with
intent to distribute cocaine, which is the predicate offense for
the § 924(c) conviction. See United States v. Munoz-Fabela, 896-
F.2d 908, 911 (5th Cir. 1990). In addition, the evidence that
Jackson was arrested in possession of more than 20 grams of crack
cocaine coupled with testimony that such an amount is consistent
with distribution was sufficient to support a finding of drug
trafficking. See United States v. Harrison, 55 F.3d 163, 165
(5th Cir. 1995).
The evidence amply supported the jury’s verdict that the
weapon recovered from Jackson when he was arrested furthered the
offense. The gun was found in Jackson’s rear waistband, it was
No. 03-11155
-3-
loaded, and it was readily accessible and near the drugs that
Jackson was carrying. See United States v. Ceballos-Torres, 218
F.3d 409, 413-15 (5th Cir. 2000).
Jackson next argues that the district court erred in
concluding that his two prior offenses for theft and robbery were
not related for purposes of his criminal history score.
Relatedly, he contends that the district court erred in relying
on summaries of police reports set out in an addendum to the
Presentence Report(PSR) and that, as those reports were not part
of the record, there was no evidence to support the district
court’s finding. He also asserts that reliance on the reports
was improper under United States v. Booker, 125 S. Ct. 738
(2005), and Shepard v. United States, 125 S. Ct. 1254 (2005).
In making sentencing determinations under the Sentencing
Guidelines, a district court may rely on information set forth in
the PSR. United States v. Montoya-Ortiz, 7 F.3d 1171, 1180 (5th
Cir. 1993). Jackson does not dispute the reliability or accuracy
of the PSR’s summary of the reports and, in fact, cited the
summary and the reports in support of his arguments to the
district court. His contention that there was no evidence to
support the district court’s findings is without merit. We also
reject his claim that the district court’s reliance on the
reports violated Booker or Shepard.
The district court did not err in finding that the offenses
were not related. First, the offenses did not occur on the same
No. 03-11155
-4-
occasion. One was the theft of a vehicle from a dealership,
while the second was an armed robbery of an individual, and the
crimes occurred in different locations at different times. Cf.
United States v. Moreno-Arredondo, 255 F.3d 198, 207 (5th Cir.
2001). Further, they were not part of a common scheme or plan as
they were not planned at the same time, nor did the theft of the
vehicle necessarily entail the subsequent robbery. Cf. United
States v. Robinson, 187 F.3d 516, 520 (5th Cir. 1999).
Finally, Jackson argues that, pursuant to Booker, the
district court violated his Sixth Amendment rights by basing his
sentence on facts that were neither found by a jury nor admitted
by him. As Jackson did not make a Sixth Amendment challenge in
the district court, we review for plain error. See United States
v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). Jackson cannot show that
any error affected his substantial rights under the third prong
of the plain error test, because there is nothing in the record
to indicate that the district court would have given Jackson a
lower sentence under an advisory rather than a mandatory
sentencing scheme. See id. For the foregoing reasons, the
judgment of the district court is AFFIRMED.