IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41301
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO ROSAS LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-32-3
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October 16, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Alberto Rosas Lopez (“Rosas”) appeals his conviction and
sentence, following a jury trial, for conspiracy to possess more
than 50 kilograms of marijuana with intent to distribute (in
violation 21 U.S.C. § 846) and possession of more than 50
kilograms of marijuana with intent to distribute (in violation of
21 U.S.C. § 841(a)(1)).
Rosas contends that the district court erred in failing to
dismiss his indictment sua sponte as a remedy for the
*
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that this opinion should not be published and is not precedent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. 99-41301
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Government’s having presented perjured testimony by Government
witness Alberto Arriaga. The Government’s correction of
Arriaga’s false testimony during trial and the trial court’s
having permitted Rosas and his codefendant to cross-examine
Arriaga regarding that testimony were sufficient remedies to
preserve Arriaga’s constitutional rights with respect to that
testimony. See Napue v. Illinois, 360 U.S. 264, 269 (1959). As
for Rosas’ claim that the Government presented other, uncorrected
perjured testimony by Arriaga, his conclusional assertions that
this testimony was false and the mere contradictory testimony of
a single police officer were insufficient to show that the
Government knowingly presented false, material testimony.
See United States v. Leahy, 82 F.3d 624, 632 (5th Cir. 1996);
United States v. Washington, 44 F.3d 1271, 1282 (5th Cir. 1995).
The district court did not err in considering uncounseled
prior misdemeanor convictions in computing Rosas’ criminal
history score. See United States v. Osborne, 68 F.3d 94, 100
(5th Cir. 1995); United States v. Morrow, 177 F.3d 272, 305 (5th
Cir.), cert. denied, 120 S. Ct. 333 (1999). The court also did
not clearly err in imposing a two-level “aggravating role”
enhancement pursuant to U.S.S.G. § 3B1.1(c), as the PSR
information and trial testimony reflected that Rosas had
recruited one person to store a large amount of marijuana and
another to help him sell it. See United States v. Musquiz, 45
F.3d 927, 932-33 (5th Cir. 1995); United States v. Giraldo, 111
F.3d 21, 24 n.9 (5th Cir. 1997).
No. 99-41301
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For the first time on appeal, Rosas contends that this court
should adopt a “factual sufficiency” standard for reviewing the
sufficiency of the evidence, by which he means that a court would
set aside the verdict if it is so contrary to the overwhelming
weight of the evidence as to be clearly unjust and wrong. Rosas
maintains that such a standard is not forbidden by the
Constitution or by statute. It is forbidden, however, by
hundreds of this court’s binding decisions, which require
application of the “legal sufficiency” standard prescribed of
Jackson v. Virginia, 443 U.S. 307 (1979), and Glasser v. United
States, 315 U.S. 60 (1942). See, e.g., United States v.
Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997). Under that
standard, this court will affirm if a rational trier of fact
could have found that the evidence established the essential
elements of the offense beyond a reasonable doubt. See id. The
evidence at Rosas’ trial was more than sufficient to have
authorized the jury to determine that Rosas knew of and
participated in a conspiracy to possess marijuana with intent to
distribute and that he committed the underlying substantive
offense. See United States v. Bermea, 30 F.3d 1539, 1551 (5th
Cir. 1994).
Rosas’ motion to file an out-of-time reply brief is GRANTED.
The conviction and sentence are AFFIRMED.