United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 24, 2004
Charles R. Fulbruge III
Clerk
No. 03-41632
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE PAUL BURTON; ROMEO BOTELLO, JR.,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-258-1
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Wayne Paul Burton appeals his jury convictions for
possession with intent to distribute 570 kilograms of marijuana
and conspiracy to possess with intent to distribute more than
1000 kilograms of marijuana. Romeo Botello, Jr., appeals his
jury convictions for possession with intent to distribute 828
kilograms of marijuana and conspiracy to possess with intent to
distribute more than 1000 kilograms of marijuana. They argue
that the evidence is insufficient to support their conspiracy
convictions and that the evidence is not sufficient to establish
*
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this opinion should not be published and is not precedent except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. 03-41632
-2-
that their relevant conduct included more than 1000 kilograms of
marijuana. Botello also argues that his conspiracy conviction
violates due process because it is not supported by a reliable
evidentiary basis; this argument in effect restates his challenge
to the sufficiency of the evidence. A review of the evidence in
the record indicates that a rational trier of fact could have
found beyond a reasonable doubt that the evidence established
that Burton and Botello entered into an agreement with others to
transport marijuana, that they knew about the agreement, and that
they voluntarily participated in this agreement. See United
States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). The
inconsistencies in Burton’s statement to police and the false
bill of lading indicate that Burton knew the marijuana was hidden
in the tractor-trailer. See United States v. Ortega Reyna, 148
F.3d 540, 544 (5th Cir. 1998). The evidence also established
that it was reasonably foreseeable to Burton and Botello that the
conspiracy involved the transportation of more than 1000
kilograms of marijuana. See U.S.S.G. 1B1.3(a)(1); United States
v. Vital, 68 F.3d 114, 117 (5th Cir. 1995).
Burton also argues that his trial counsel was ineffective in
that: (1) he was not Burton’s counsel of choice; (2) he failed to
investigate any of the Government’s witnesses; (3) he failed to
call a key defense witness; (4) he failed to file a motion to
suppress challenging the stop of his vehicle on the day of his
arrest. Because Burton did not present these claims to the
No. 03-41632
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district court, the record is not sufficiently developed for us
to review the claims at this time and we decline to consider them
without prejudice to Burton’s right to raise them in a subsequent
collateral proceeding. See United States v. Valuck, 286 F.3d
221, 229 (5th Cir.), cert. denied, 537 U.S. 1000 (2002).
AFFIRMED.