United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 10, 2005
Charles R. Fulbruge III
Clerk
No. 04-40676
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO FRIAS,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Texas
(4:03-CR-53-11-LED)
Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Pedro Frias was convicted by a jury of conspiring to possess
with intent to distribute Ecstasy and five kilograms or more of a
mixture and substance containing a detectable amount of cocaine.
He appeals his conviction and 188-month sentence.
Frias claims the district court erred in denying his FED. R.
CRIM. P. 29 motion for judgment of acquittal. Frias concedes that
the evidence adduced at trial showed the existence of a conspiracy,
but he contends it was unlikely he knew of the conspiracy or that
*
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this opinion should not be published and is not precedent except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.
he voluntarily participated in it. He notes that he does not share
linguistic or cultural ties with most of the alleged conspirators.
Frias preserved the issue by moving for a Rule 29 judgment of
acquittal at the close of the Government’s case and at the end of
all the evidence. See, e.g., United States v. Daniel, 957 F.2d
162, 164 (5th Cir. 1992). Accordingly, we review de novo the
denial of the Rule 29 motion, applying the same standard as in a
general review of the sufficiency of the evidence. See United
States v. Payne, 99 F.3d 1273, 1278 (5th Cir. 1996). We will
affirm if “any reasonable trier of fact could have found that the
evidence established the appellant’s guilt beyond a reasonable
doubt”. United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir.
1995). All reasonable inferences must be drawn in favor of the
jury’s verdict. See, e.g., United States v. Brito, 136 F.3d 397,
408 (5th Cir. 1998).
The Government contends that the testimony of Tam Trieu
provided sufficient evidence to convict Frias. Trieu testified
that he “fronted” distributable quantities of Ecstasy to Frias on
numerous occasions, and that Frias purchased 2000 Ecstasy tablets
from Bich Ngoc Tran. Trieu also testified that he helped to find
a buyer for Frias when he was seeking to sell cocaine, arranging
three sales to Tran, totaling 33 kilograms of cocaine. Considering
the evidence in the light most favorable to the government, see
United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998), it was
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sufficient to sustain Frias’ conspiracy conviction. See United
States v. Casel, 995 F.2d 1299, 1306 (5th Cir. 1993), vacated on
other grounds sub nom, Reed v. United States, 510 U.S. 1188 (1994).
Under United States v. Booker, 125 S. Ct. 738 (2005), Frias
maintains the district court’s application of a two-level
enhancement for possession of a dangerous weapon was error because
the enhancement was not submitted to the jury. He claims that, if
the district court had not been bound by mandatory sentencing
guidelines, it could have considered factors such as his age and
lack of criminal history in determining his sentence.
As he concedes, Frias did not challenge his sentence on these
grounds in the district court; therefore, review is only for plain
error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005), petition for cert. filed (U.S. 31 Mar. 2005) (No. 04-9517).
To be eligible for possible relief under the plain error standard,
Frias must show: a clear or obvious error that affected his
substantial rights. See id.
Frias “has pointed to nothing in the record indicating that
the sentencing judge would have reached a different conclusion
under an advisory scheme”. United States v. Bringier, 405 F.3d
310, 317 (5th Cir. 2005). Because Frias has not carried his burden
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of demonstrating that the result would likely have been different
had the district court sentenced him under an advisory regime, he
has not shown reversible plain error. See id. at 318.
AFFIRMED
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