United States v. Landeros ( 1997 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 96-10044
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
REFUGIO LANDEROS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
(4:95-CR-42-Y)
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March 10, 1997
Before DAVIS, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:*
Appellant stands convicted of three drug trafficking counts:
conspiracy with intent to distribute cocaine, possession with
intent to distribute cocaine and aiding and abetting the possession
of marijuana with intent to distribute; 21 U.S.C. §§ 846,
841(a)(1), 841(b)(1)(C). The court sentenced Landeros to a term of
121 months on each count to run concurrently, supervised release of
five years, and a special assessment fee of $50 on each count.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
The sole issue on appeal is whether the government produced
sufficient evidence to convict the defendant on count 3, aiding and
abetting the possession of marijuana with intent to distribute.
Except for the additional $50 special assessment on count 3, the
outcome of this appeal has absolutely no effect on the defendant's
sentence. Therefore, rather than affirm or make a detailed review
of sufficiency at this time, we choose to follow another course.
We invoke the concurrent sentence doctrine to decline review of
defendant's conviction on count 3. Because of the $50 special
assessment on count 3 and in order to obviate any other possible
adverse consequences to the defendant (which we cannot foresee at
this time), we elect to vacate the unreviewed conviction. We have
followed this course a number of times. See United States v.
Montemayor, 703 F.2d 109, 116 (5th Cir. 1983). As we observed in
Montemayor, vacating the unreviewed conviction in no way alters the
jury's verdict or the conviction itself. "The effect of this
judicial action is to suspend imposition of the sentence. No need
of the government is impaired; at the same time, no possibility of
adverse collateral consequences to defendant exists." See also
United States v. Cardona, 650 F.2d 54, 58 (5th Cir. 1981).
Conviction VACATED.
2