United States v. Moore

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40018
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GWENDOLYN CAROL MOORE, also
known as Sandra A. Newton,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:98-CR-3-2
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January 10, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gwendolyn Carol Moore, also known as Sandra A. Newton, appeals
her conviction and sentence, following a jury trial, for conspiracy
to possess marijuana with intent to distribute, in violation 21
U.S.C. § 846, and possession of marijuana with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1).
The evidence was not insufficient to support Moore’s
convictions for conspiracy and possession. See United States v.
El-Zoubi, 993 F.2d 442, 445 (5th Cir. 1993); United States v. Cano-
Guel, 167 F.3d 900, 904 (5th Cir. 1999); United States v. Bermea,
*
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this opinion should not be published and is not precedent except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.
30 F.3d 1539, 1551 (5th Cir. 1994). Moore testified that, until
approximately one hour before a state trooper stopped them, she was
completely unaware of the 198.5 pounds of marijuana in the trunk of
the car she was driving, along with a codefendant as passenger.
The jury, however, was entitled to discredit her account of the car
trip, in which she maintained that she had agreed to travel
“straight through” from Ohio to Texas and back with her
codefendant, a man she barely knew, simply because she had recently
had problems in an unspecified romantic relationship and needed to
“get away” from Ohio. See United States v. Jones, 185 F.3d 459,
464 (5th Cir. 1999) (constructive possession of drugs may be shown
by control of vehicle in which drugs are concealed); United States
v. Brito, 136 F.3d 397, 411 (5th Cir.) (defendant’s failure to
provide sufficient explanation for long trip to border in car
“escorting” truck containing marijuana entitled jury to reject
defendant’s claim that he was “just along for the ride”), cert.
denied, 118 S.Ct. 1817 (1998).
The district court did not clearly err in refusing to grant
Moore an offense level reduction for “minor” or “minimal”
participation under U.S.S.G. § 3B1.2. See United States v. Zuniga,
18 F.3d 1254, 1261 (5th Cir. 1994); United States v. Bethley, 973
F.2d 396, 401 (5th Cir. 1992) (a drug courier is not automatically
entitled to a mitigating role reduction).
The district court did not clearly abuse its discretion in
admitting into evidence Moore’s 1977 Ohio conviction for aggravated
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drug trafficking. See United States v. Broussard, 80 F.3d 1025,
1039 (5th Cir. 1996). The district court was authorized to
conclude that such conviction was relevant under FED. R. EVID.
404(b) to show Moore’s state of mind in the instant case and that
the conviction was not too remote in time to be probative.
See United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en
banc); United States v. Chavez, 119 F.3d 342, 346 (5th Cir.) (use
of 15-year-old conviction), cert. denied, 118 S.Ct. 615 (1997).
A F F I R M E D.
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