United States v. Flores , 95 F. App'x 528 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 28, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20220
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL GAUCIN FLORES; GILBERT LEE HOBBS; JESUS VASQUEZ,
Defendants-Appellees.
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Appeals from the United States District Court
for the Southern District of Texas
(H-02-CR-379-7
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Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Defendants-Appellees Miguel Flores, Gilbert Hobbs, and Jesus
Vasquez were found guilty by a jury of (1) conspiracy to distribute
five kilograms or more of cocaine and (2) aiding and abetting the
possession with intent to distribute five kilograms or more of
cocaine. On appeal, Flores and Vasquez challenge the sufficiency
of the evidence. Vasquez additionally argues that a co-
conspirator’s testimony was improper rebuttal evidence; he was not
afforded an opportunity to debrief with the government to qualify
*
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this opinion should not be published and is not precedent except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.
for a safety-valve reduction; and the district court erred in not
granting him a minor-role adjustment to his offense level. Hobbs
argues that the district court abused its discretion in not
continuing the trial following the government’s failure to provide
the defense with the chemist’s resume and the bases of his opinion
that the substance involved in the offense was cocaine.
Flores moved for acquittal at the close of the government’s
case and at the close of all of the evidence. His challenge to the
sufficiency of the evidence is thus reviewed under the Jackson v.
Virginia, 443 U.S. 307, 319 (1979), standard: “whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Vasquez did not renew his FED. R. CRIM. P. 29 motion for acquittal
at the close of all the evidence, and his sufficiency challenge is
limited to whether there was a manifest miscarriage of justice,
i.e., whether “the record is devoid of evidence pointing to guilt
or contains evidence on a key element of the offense [that is] so
tenuous that a conviction would be shocking.” United States v.
McIntosh, 280 F.3d 479, 483 (5th Cir. 2002).
Our review of the record reveals that there was sufficient
evidence that Flores knew of, participated in, and assisted the
venture in the transporting of cocaine. United States v. Moser,
123 F.3d 813, 819 (5th Cir. 1997); United States v. Alvarez, 625
F.2d 1196, 1198 (5th Cir. 1980). Also, the record is not devoid of
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evidence that Vasquez knew of, participated in, and assisted the
conspiracy in the transporting of cocaine.
Juan Ybarra’s testimony was not improper rebuttal evidence,
and the district court did not abuse its discretion in allowing it.
See United States v. Sanchez, 988 F.2d 1384, 1393 (5th Cir. 1993).
The district court’s determination that Vasquez would not have
provided full information about the offense was not clear error,
and the district court did not err in denying his request to be
debriefed in an effort to qualify for a offense-level reduction
under U.S..S.G. § 2D1.1(b)(6). See United States v. Miller, 179
F.3d 961, 963-64 (5th Cir. 1999). Neither did the district court
clearly err in finding that Vasquez was not entitled to an
adjustment for plalying a minor role in the offense. United States
v. Nevarez-Arreola, 885 F.2d 243, 245 (5th Cir. 1989); United
States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).
Hobbs fails to show an abuse of discretion or reversible error
by the district court in its denial of the defendants’ motion for
a continuance to investigate the government’s chemist’s
qualifications and the bases of his opinion. United States v.
Garrett, 238 F.3d 293, 299 (5th Cir. 2000); United States v. Katz,
178 F.3d 368, 372 (5th Cir. 1999).
AFFIRMED.
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