United States v. Medina , 108 F. App'x 944 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 14, 2004
Charles R. Fulbruge III
Clerk
No. 03-51097
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RUBEN MEDINA
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-03-CR-05-ALL
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Before KING, Chief Judge, and BARKSDALE and DeMOSS, Circuit
Judges.
PER CURIAM:*
Ruben Medina was convicted of conspiracy to possess with
intent to distribute, and possession with intent to distribute,
50 kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1) and 846. He argues that the district court
committed reversible error when it refused his request for a jury
instruction on withdrawal from the conspiracy.
Viewing the evidence in the light most favorable to Medina,
we conclude that there was a sufficient evidentiary foundation
*
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this opinion should not be published and is not precedent except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. 03-51097
-2-
for a jury instruction on withdrawal. United States v. Dixon,
185 F.3d 393, 402 (5th Cir. 1999). Specifically, Medina’s
testimony and the testimony of Marcos Medina constituted
sufficient evidence that Medina committed affirmative acts
inconsistent with the object of the conspiracy and that he
communicated those acts in a manner reasonably calculated to
reach the conspirators. United States v. Puig-Infante, 19 F.3d
929, 945 (5th Cir. 1994).
Because the record sufficiently supports the defensive
theory of withdrawal from the conspiracy to entitle Medina to a
jury instruction on withdrawal, we VACATE his conspiracy
conviction and REMAND this matter for further proceedings.
United States v. John, 309 F.3d 298, 304 (5th Cir. 2002).
VACATED and REMANDED.