United States v. Fabela

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50272
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS MANUEL FABELA,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(P-98-CR-185-1-B)
March 7, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jesus Manuel Fabela appeals his conviction (one issue) and
sentence (one issue) for possession with intent to distribute
marijuana.
Concerning his conviction, Fabela maintains the evidence was
insufficient to support finding he was aware the truck he was
driving contained drugs. But, because he failed, at the close of
all the evidence (Fabela testified), to renew his motion for
acquittal, we consider this 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this opinion should not be published and is not precedent except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.
not under the ususal standard of review for
claims of insufficiency of evidence, but
rather under a much stricter standard. We are
limited to the determination of whether there
was a manifest miscarriage of justice. Such a
miscarriage would exist only if the record is
devoid of evidence pointing to guilt, or
because the evidence on a key element of the
offense was so tenuous that a conviction would
be shocking.
United States v. Knezek, 964 F.2d 394, 400 n.14 (5th Cir. 1992)
(emphasis added; internal quotation marks and ellipsis omitted).
There was, inter alia, evidence: Fabela was nervous upon
initial questioning; demonstrated no surprise when told of the
marijuana in the truck he was driving; and, after the marijuana was
discovered, changed his story regarding his travel destination and
purpose. These factors may constitute circumstantial evidence of
guilt. E.g., United States v. Ortega-Reyna, 148 F.3d 540, 544 (5th
Cir. 1998). In short, the record is not devoid of evidence
pointing to guilt.
Concerning his sentence, Fabela contends the district court
erred in attributing to him the drugs found in the truck driven by
his co-defendant, Jorge Saldana. A district court’s determination
of the quantity of drugs for sentencing purposes is a finding of
fact reviewed only for clear error. E.g., United States v. Torres,
114 F.3d 520, 527 (5th Cir.), cert. denied, 522 U.S. 922 (1997).
If Fabela was aware of the marijuana in his truck, as the jury
necessarily found, then it was not clearly erroneous to find it
reasonably foreseeable to Fabela that Saldana’s truck also
contained marijuana. This is particularly true given the evidence
that: Fabela and Saldana were together approached about the
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opportunity to drive the vehicles; and they picked up the trucks at
approximately the same time. See U.S.S.G. § 1B1.3 (including in
base-offense level calculation “all reasonably foreseeable acts and
omissions of others in furtherance of the jointly undertaken
criminal activity, that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that
offense”); United States v. Hernandez-Coronado, 39 F.3d 573, 574
(5th Cir. 1994).
AFFIRMED
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