United States v. Patino , 312 F. App'x 609 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 25, 2009
No. 08-50635
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS PATINO, JR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:07-CR-226-1
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Following his conviction by a jury, Defendant-Appellant Luis Patino, Jr.,
appeals his conviction and sentence for conspiracy to possess with intent to
distribute cocaine and possession with intent to distribute cocaine. He raises
two contentions on appeal, one as to his sentence and the other as to his
conviction.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50635
Patino contends that the district court committed clear error in sentencing
him when it overruled his objection to a two-level increase in his offense level
that was based on his leading role in the offense. The trial record and the
presentence report (PSR) show that Patino forbade his common law wife and
codefendant, Gloria Rayos, from dealing with male customers, that Rayos gave
the proceeds of her sales to Patino, that Patino kept Rayos from leaving him by
threatening to expose her as a fugitive, and that Patino dealt with the couple’s
drug supplier. This evidence renders plausible the court’s finding that Patino
managed Rayos and exercised a leading or organizing role in the criminal
conduct. See United States v. Parker, 133 F.3d 322, 330 (5th Cir. 1998). The
district court committed no clear error in sentencing Patino.
Patino also contends that the evidence was insufficient to convict him on
either count. Patino does not contend that the evidence, if believed, failed to
establish any element of either crime. Rather, he argues that the testimony was
“factually insubstantial.” This argument is merely an assertion that the
testimony of Rayos and other witnesses was not worthy of belief because it was
uncorroborated. It was exclusively for the jury to decide whether the witnesses
were credible, and the witnesses’ credibility is not an issue on appeal. United
States v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004); Brainin v. United States,
317 F.2d 69, 69 (5th Cir. 1963). As the jury was entitled to believe the witnesses,
the evidence was sufficient to allow the jury to find that the government proved
all the elements of the offenses beyond a reasonable doubt. United States v. Kay,
513 F.3d 432, 452 (5th Cir. 2007), cert. denied, 129 S. Ct. 42 (2008).
Patino’s conviction and sentence are, in all respects,
AFFIRMED.
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