United States v. Atlas

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-60654
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELVIN L. ATLAS, also known as Sealed Defendant 5,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CR-66-WNO-5
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Elvin L. Atlas was convicted by a jury of conspiracy to
distribute cocaine and marijuana and of using a communications
facility, a telephone, to commit, cause, or facilitate the
conspiracy. Atlas argues that the evidence is insufficient to
support his convictions because it did not show that he entered
into a conspiracy. In reviewing a claim of insufficient
evidence, this court views the evidence, in the light most
favorable to the verdict, to determine if a rational trier of
*
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this opinion should not be published and is not precedent except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. 04-60654
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fact could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt. United States
v. Romero-Cruz, 201 F.3d 374, 378 (5th Cir. 2000). The testimony
of Brown’s codefendant was sufficient to show that Atlas joined
in the conspiracy’s ultimate purpose of distributing drugs.
United States v. Thomas, 12 F.3d 1350, 1365 (5th Cir. 1994);
United States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir. 1994).
Atlas does not dispute that the telephone system was used in
connection with the offense. The evidence presented at trial was
sufficient to support Atlas’s convictions.
Atlas challenges the instructions and verdict form given to
the jury. Atlas does not show that the jury charge or verdict
form, considered as a whole and in the full context of the trial,
were inadequate or erroneous. United States v. Allred, 867 F.2d
856, 868 (5th Cir. 1989).
Atlas argues that the district court was clearly erroneous
in determining the amount of cocaine and marijuana that were
relevant to the conspiracy offense. A district court’s findings
of fact, including its findings concerning the amount of drugs
for which a defendant should be held responsible, are reviewed
for clear error. United States v. Posada-Rios, 158 F.3d 832, 878
(5th Cir. 1998). The district court may hold a defendant
accountable for unconsummated transactions. Atlas does not argue
that he was not capable of taking delivery of the planned but
uncompleted transaction involving 10 kilos of cocaine, rather he
No. 04-60654
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argues that the testimony of his codefendant was not sufficient
to prove that he engaged in the conspiracy. The codefendant’s
testimony was viewed as credible by the jury, and Atlas has not
shown that the district court clearly erred in relying on that
same testimony at sentencing.
Atlas makes a vague and unsupported argument that his
sentence should be vacated under United States v. Booker, 125 S.
Ct. 738 (2005). Atlas does not suggest that the district court
committed fundamental error by sentencing him under the mistaken
belief that the guidelines were mandatory. Atlas does not
maintain that the sentencing increase based on relevant conduct
applied by the district court is impermissible because it was
based upon facts not admitted by him during his guilty plea or
not found beyond a reasonable doubt by a jury. Nor can he
because the jury did make findings as to the amount of narcotics
for which he was responsible. In any event, this pro forma
argument is insufficient under FED. R. APP. P. 28 and is deemed
waived. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
AFFIRMED.