United States v. Allen ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 10, 2006
Charles R. Fulbruge III
Clerk
No. 05-41256
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ROBERT ALLEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-154
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
James Robert Allen was convicted by a jury of possession
with intent to distribute approximately 40 kilograms of cocaine.
Allen was sentenced to 151 months of imprisonment and to a five-
year term of supervised release. On appeal, he argues that there
was insufficient evidence to prove that he knew the cocaine was
in the gas tank of his vehicle.
Because Allen moved for a judgment of acquittal at the close
of the Government’s case and the close of all evidence, the issue
*
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this opinion should not be published and is not precedent except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. 05-41256
-2-
is preserved for review. See FED. R. CRIM. P. 29. Therefore, the
standard of review in assessing the sufficiency challenge is
“whether, considering all the evidence in the light most
favorable to the verdict, a reasonable trier of fact could have
found that the evidence established guilt beyond a reasonable
doubt.” United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.
2000). The evidence need not exclude every reasonable hypothesis
of innocence or be inconsistent with every conclusion except that
of guilt. United States v. Resio-Trejo, 45 F.3d 907, 911 (5th
Cir. 1995). In the instant case, there was sufficient evidence
from which the jury could infer that Allen knew the cocaine was
hidden in his vehicle’s gas tank. See United States v.
Villarreal, 324 F.3d 319, 324 (5th Cir. 2003); United States v.
Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).
Allen also argues that the district court abused its
discretion in allowing certain opinion evidence by a federal law
enforcement agent. The law enforcement agent’s drug trafficking
testimony was offered as a “mere explanation of [his] analysis of
the facts,” rather than a “forbidden opinion” regarding an
ultimate issue in the case. See United States v. Gutierrez-
Farias, 294 F.3d 657, 663 (5th Cir. 2002) (internal quotation
marks and citations omitted). However, the law enforcement agent
did offer an improper opinion regarding Allen’s knowledge of the
drugs when the agent testified that he was not telling the jury
that he did not believe that Allen had no knowledge of the drugs.
No. 05-41256
-3-
See id. Nevertheless, any error by the district court in
allowing the testimony was harmless because the agent’s statement
“constituted only a small portion of an otherwise strong case.”
Id.1
Lastly, Allen argues that his sentence must be vacated
because the district court failed to articulate any application
of the factors set out in 18 U.S.C. § 3553(a) to the facts of his
case. At sentencing, the district court noted that it considered
the factors set forth in § 3553(a), including Allen’s past
record. The district court imposed a sentence within the
properly calculated guidelines range. Accordingly, the sentence
is presumed reasonable. See United States v. Alonzo, 435 F.3d
551, 553 (5th Cir. 2006). Allen fails to rebut the presumption
that the sentence imposed was reasonable. See id. Accordingly,
Allen’s conviction and sentence are AFFIRMED.
1
Moreover, as a matter of logic, the agent stated he was “not saying he
thought Allen had knowledge,” a statement favorable to Allen. Of course,
given the confusion of the statement and its context, the jury likely thought
it unfavorable to Allen. Yet its confusing nature buttresses our conclusion
that the statement was only a “small part” of an otherwise strong case.