IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50193 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER RAY HUBERT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-98-CR-50-1 --------------------

November 8, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Christopher Ray Hubert, appellant, challenges his conviction

and sentence on one count of conspiracy to possess with intent to

distribute cocaine base, or “crack” (Count 1), and one count of

carrying a firearm during commission of a drug trafficking crime

(Count 2). Finding no error, we affirm.

Hubert first contends that the district court erred in

refusing to grant his motion for acquittal on the grounds that

the evidence was insufficient to support either charge. The

standard of review for a challenge to the denial of a motion for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50193 -2-

judgment of acquittal is the same as that for a challenge to the

sufficiency of the evidence: this court asks “whether, viewing

the evidence and the inferences that may be drawn from it in the

light most favorable to the verdict, a rational jury could have

found the essential elements of the offenses beyond a reasonable

doubt.” United States v. Pruneda-Gonzalez,

(5th Cir. 1992) (citations omitted).

With respect the conspiracy count, the evidence was more

than sufficient to support the jury’s verdict. In particular,

Hubert failed to stop for a police officer until his passenger,

Jesse Davis, had jettisoned items from the car; immediately

afterwards, police found two packages containing distributable

amounts of crack cocaine and a revolver. Police found additional

crack in the car and large amounts of cash on Hubert and Davis.

Thus, the cumulative circumstantial evidence supports an

inference that Hubert had possession of the crack and the

revolver in his car and that he was involved in the sale of crack

cocaine with Davis. Accordingly, there was evidence from which

the jury could infer the three elements of a drug conspiracy:

agreement, knowledge, and voluntary participation. See United

States v. Dean,

(5th Cir. 1995). The jury

evidently chose to disregard Hubert’s version of the events and

we accept the jury’s credibility determination. See United

States v. Steen,

(5th Cir. 1995).

With respect to Count 2, Hubert asserts that the Government

failed to prove that the revolver was a firearm. This assertion

also fails. The evidence demonstrated that the revolver was a No. 99-50193 -3-

loaded gun. The jury was able to view it and make a common-sense

determination that it was a firearm. See United States v. Munoz,

(5th Cir. 1994); United State v. Blevinal,

(5th Cir. 1979). Although the district court did

not instruct the jury on the definition of “firearm,” Hubert

requested no such instruction and did not argue below that the

gun was not a firearm. Given the evidence, no error occurred.

See United States v. Hagmann,

, 184 n. 21 (5th Cir.

1991). In addition, the Government was not required to prove the

serial number or model of the revolver, as Hubert contends, but

only that it met the statutory definition of firearm. See Dean,

. Accordingly, we find that the evidence was

sufficient to support the jury’s verdict on Count 2.

Hubert next contends that an improper, inflammatory remark

by the prosecutor warrants reversal. Hubert did not object below

on the basis that the remark was inflammatory, but that it was

outside the evidence. Nevertheless, even if we assume that he

preserved this error for appeal, such error was harmless. The

district court immediately instructed the jury to disregard the

comment and told the jury both in its opening and closing

instructions that remarks of counsel were not to be considered as

evidence. In addition, the evidence against Hubert was

substantial. Thus, although the remark was improper, it is

insufficient to warrant reversal when balanced against the

district court’s prompt curative instruction, the court’s general

instructions to the jury, and the significant evidence of

Hubert’s guilt. See United States v. Casel,

, 1308 No. 99-50193 -4-

(5th Cir. 1993) (factors to consider in deciding whether to

reverse a conviction due to improper prosecutorial remarks are

the magnitude of any prejudicial effect, the efficacy of

cautionary instructions, and the strength of the evidence

supporting the conviction).

Finally, Hubert contests the district court’s use of a drug

quantity estimate from a confidential informant (CI), in

determining his sentence. We review a district court’s

calculation of drug quantities for clear error. See United

States v. Alford,

(5th Cir. 1998). A

district court may rely on estimates in determining drug

quantities for sentencing purposes.

. The CI’s

information was contained in the presentence report (PSR), which

ordinarily bears sufficient indicia of reliability for sentencing

purposes.

. Further, a narcotics agent testified

at Hubert’s sentencing hearing regarding the CI’s estimate and

said that he was familiar with the CI and knew that the CI had

provided reliable information in the past. Hubert failed to

present any rebuttal evidence and, therefore, did not meet his

burden of proving that the information contained in the PSR was

materially untrue.

. Accordingly, the district court

did not clearly err in relying on the CI’s estimate in

calculating the drug quantity.

For the foregoing reasons, we AFFIRM the judgment of the

district court.

AFFIRMED.