No. 98-40868
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40868
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GILBERTO ROMERO-ADAME,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-97-CR-255-1
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June 28, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Gilberto Romero-Adame argues that the evidence was
insufficient to support his convictions for conspiracy and for
possession with intent to distribute heroin. Viewing the evidence
in the light most favorable to the jury’s verdict, it showed that
Romero directed the manner in which two loads of heroin were to be
distributed to an undercover agent by his coconspirators. The
evidence did not show a mere buyer-seller relationship between
Romero and his coconspirators. A rational trier of fact could have
*
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that this opinion should not be published and is not precedent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. 98-40868
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found Romero guilty of the charges beyond a reasonable doubt.
United States v. Pena-Rodriguez, 110 F.3d 1120, 1123 (5th Cir.
1997); United States v. Casel, 995 F.2d 1299, 1306 (5th Cir. 1993).
Romero argues that there was a fatal variance between the
indictment and the evidence presented at trial because the
indictment charged a single conspiracy and multiple conspiracies
were proved at trial. Assuming that the evidence showed the
existence of multiple conspiracies, Romero failed to show that the
introduction of such evidence deprived him of a fair trial. The
evidence concerning a sale of heroin that was not supplied by
Romero was not complex and did not result in the transference of
the guilt of a codefendant to Romero. Romero has failed to show
that the limited variance between the indictment and the evidence
presented affected his substantial rights. Therefore, this claim
has no merit. Pena-Rodriguez, 110 F.3d at 1126-28.
Romero argues that the district court clearly erred in
increasing his offense level for the obstruction of justice based
on his failure to disclose foreign convictions. There was reliable
evidence in the presentence report and the record that Romero was
specifically questioned about his past arrests and convictions in
the United States and Mexico, and Romero willfully failed to
disclose material information to the probation officer. Therefore,
the district court did not clearly err in imposing the adjustment
for obstruction of justice. See United States v. Tello, 9 F.3d
1119, 1122-23 (5th Cir. 1993); U.S.S.G. § 3C1.1
comment,(n.4(d)(h)).
No. 98-40868
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Romero argues that the district court erred in considering his
foreign convictions in determining his sentence. Even if Romero
did not waive this issue, he failed to raise the objection in the
district court and, thus, the issue is subject to plain error
review. The district court did not misapply the guidelines in
considering the foreign convictions at sentencing. See U.S.S.G. §§
4A1.2(h), 4A1.3, p.s. Further, Romero’s substantial rights were
not affected by such consideration and, thus, it did not constitute
plain error. See United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc).
AFFIRMED.