United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-50045
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN DESHONE THORNTON, also known as “KT”,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-03-CR-84-ALL
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Kelvin Deshone Thornton was convicted of attempted
distribution of cocaine base. Thornton asserts that the evidence
was insufficient to support his conviction for attempted
distribution of cocaine base, because he did not engage in conduct
that amounted to a substantial step towards distributing cocaine
base.
The standard for reviewing Thornton’s claim of insufficient
evidence is “whether, viewing all the evidence in the light most
*
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that this opinion should not be published and is not precedent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. 04-50045
-2-
favorable to the verdict, a rational trier of fact could have found
that the evidence establishes the essential elements of an offense
beyond a reasonable doubt.” United States v. Villarreal, 324 F.3d
319, 322 (5th Cir. 2003). To be convicted of attempt under 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 846, the Government must show
(1) that the defendant acted “with the kind of culpability
otherwise required for the commission of the crime which he is
charged with attempting” and (2) that the defendant engaged in
conduct constituting a substantial step towards the commission of
the crime. United States v. Stone, 960 F.2d 426, 433 (5th Cir.
1992).
Here, Thornton completely negotiated two sales of cocaine
base. In the first transaction, Thornton was the seller, and, in
the second transaction, Thornton was the negotiator of the sale who
was to receive a commission from the transaction. Thornton was
persistent in his attempts and did everything he could do to
finalize the negotiated sale. Accordingly, viewed in the light
most favorable to the verdict, there was sufficient evidence for
the jury to reasonably conclude that Thornton acted with the
culpability required for the crime of distribution of cocaine base
and that Thornton performed substantial steps toward the commission
of the crime of distribution of cocaine base.
AFFIRMED.