United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 8, 2004
Charles R. Fulbruge III
Clerk
No. 03-41016
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO GARCIA RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-89-1
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Alejandro Garcia Ramirez appeals from a jury-trial
conviction for conspiracy to possess with intent to distribute
and possession with intent to distribute over 50 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1),(b)(1)(C) and 18
U.S.C. § 2.
Possession
Ramirez argues that the evidence is legally insufficient to
support his conviction on the possession and conspiracy counts.
*
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this opinion should not be published and is not precedent except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. 03-41016
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Because he failed to move for a judgment of acquittal with
respect to this charge, the standard of review is limited to
whether the record is “devoid of evidence pointing to guilt.”
See United States v. Herrera, 313 F.3d 882, 885 (5th Cir.
2002)(en banc).
The record reflects that Ramirez exhibited some hesitation
when asked by a customs inspector about his destination, that he
demonstrated no signs of nervousness when his pickup truck was
being examined, that he had owned the truck for two months prior
to the arrest, and that the truck contained numerous alterations,
some of which were obviously recent and related to the tank in
which marijuana was found. See United States v. Moreno, 185 F.3d
465, 472 n.3 (5th Cir. 1999). Accordingly, the record is not
“devoid of evidence pointing to guilt.” See Herrera, 313 F.3d at
885.
Conspiracy
Ramirez also argues that the evidence is insufficient to
support his conviction on the conspiracy charge. Because he
moved for a judgment of acquittal with respect to this charge at
the close of the evidence, this court reviews his sufficiency
challenge to determine “whether any reasonable trier of fact
could have found that the evidence established the essential
elements of the crime beyond a reasonable doubt.” United States
v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998).
No. 03-41016
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Testimony revealed that the weight of the propane tank
attached to Ramirez’s vehicle that contained the marijuana
required five to six individuals to lift it when the tank was
emptied. Moreover, from the quantity of the drugs (approximately
126 pounds or 57 kilograms) and the street value ($31,500 in
Brownsville to $283,500 in Houston), it is reasonable to infer
that other individuals were involved besides Ramirez. See United
States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002).
Accordingly, the evidence was sufficient to support his
conspiracy conviction.
Constitutionality of 21 U.S.C. § 841
For the first time on appeal, Ramirez argues that 21 U.S.C.
§§ 841(a) and (b) are facially unconstitutional under Apprendi,
in that drug quantity is an element of the offense that must be
presented to the trier of fact. Ramirez acknowledges that relief
on this argument is foreclosed by United States v. Slaughter, 238
F.3d 580 (5th Cir. 2000), but attempts to raise the issue to
preserve it for Supreme Court review.
Because Ramirez’s claim was not raised in the district
court, it is waived. Moreover, this Court has specifically
rejected the argument that Apprendi rendered the sentencing
provisions of § 841(a) and (b), facially unconstitutional. See
Slaughter, 238 F.3d at 582. Thus, as Ramirez acknowledges,
Slaughter applies and forecloses his argument. Accordingly, the
judgment of the district court is AFFIRMED.
No. 03-41016
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