United States v. Hinojosa , 287 F. App'x 318 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2008
No. 07-40665
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EVERT PENA HINOJOSA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-123-2
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Evert Pena Hinojosa appeals his conviction for conspiracy to possess five
or more kilograms of cocaine and possession of this same type and quantity of
drugs with intent to distribute as well as the resulting 235-month sentence.
Pena Hinojosa argues that the district court erred by denying his request that
trial counsel Jose Tellez be permitted to withdraw from representation on the
morning of trial and that Luis Figueroa be allowed to enroll as counsel. Our
review of the record, which does not reflect that Figueroa was present in court
*
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should not be published and is not precedent except under the limited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. 07-40665
on the morning of trial or even that he had agreed to represent Pena Hinojosa,
does not support Pena Hinojosa’s assertion that his rights were infringed in
connection with this ruling. Rather, the record shows no error in connection
with the district court’s denial of the proposed substitution because this
substitution seems likely to have impeded the orderly administration of justice.
See United States v. Kitchin, 592 F.2d 900, 903 (5th Cir. 1979); see also McQueen
v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985).
Pena Hinojosa argues that the district court erred by admitting both
testimonial and documentary evidence pertaining to the cocaine involved with
his offenses because the chain of custody of the cocaine was not sufficiently
established. He concomitantly argues that the district court erred by denying
his motion for judgment of acquittal because the disputed evidence should not
have been admitted and because the remaining evidence does not show that he
conspired to possess and actually possessed cocaine.
These arguments are unavailing for two reasons. First Pena Hinojosa’s
argument that the disputed evidence should not have been admitted because the
chain of custody was not properly established is misplaced. “[A] ‘break in the
chain of custody simply goes to the weight of the evidence, not its admissibility.’”
United States v. Dixon, 132 F.3d 192, 197 (5th Cir. 1997) (quoting United States
v. Sparks, 2 F.3d 574, 582 (5th Cir. 1993)).
Second, Pena Hinojosa’s argument concerning the admission of certain
evidence is reviewed for plain error only due to his failure to raise it in the
district court. See United States v. Polasek, 162 F.3d 878, 883 (5th Cir. 1998).
Our review of the record shows no error, much less plain error, in connection
with the admission of the disputed evidence.
Pena Hinojosa’s challenge to the district court’s denial of his motions for
judgment of acquittal is similarly unavailing. The evidence adduced at trial was
sufficient to permit a reasonable juror to find “that the evidence established the
essential elements of the crime[s of conviction] beyond a reasonable doubt.”
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No. 07-40665
United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). Pena Hinojosa
has not shown that the district court erred by denying his motions for judgment
of acquittal.
Finally, Pena Hinojosa challenges his sentence. He contends that the
district court failed to give sufficient consideration to the sentencing factors
found in 18 U.S.C. § 3553(a) and that a sentence of 15 years would have been
more reasonable than the 235 month sentence that was imposed.
Under the discretionary sentencing system established by United States
v. Booker, 543 U.S. 220 (2005), district courts retain the duty to properly
calculate and consider the applicable sentencing range under the Sentencing
Guidelines, along with the sentencing factors set forth in § 3553(a), when
fashioning a sentence. United States v. Mares, 402 F.3d 511, 518-19 (5th Cir.
2005). When reviewing a sentence, we consider whether the district court
committed procedural error at sentencing and whether the sentence imposed is
substantively reasonable. See Gall v. United States, 128 S. Ct. 586, 594, 597
(2007). Further, the district court’s sentencing decision is ultimately reviewed
for an abuse of discretion. Id.; see also United States v. Gomez-Herrera, 523 F.3d
554, 564 (5th Cir. 2008).
Our review of the record shows no error in connection with Pena
Hinojosa’s sentence. The district court committed no procedural error at
sentencing, and the sentence imposed is substantively reasonable. See Gall, 128
S. Ct. at 594, 597.
Pena Hinojosa has shown no error in connection with his convictions and
sentence. Consequently, the judgment of the district court is AFFIRMED.
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