United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit November 29, 2005
Charles R. Fulbruge III
Clerk
No. 04-50796
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RUBIN VICTOR LEAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(2:03-CR-279-2-AML)
Before JONES, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Ruben Victor Leal (“Leal”) appeals the
jury verdict convicting him of (1) one count of conspiring to
commit offenses against the United States; (2) seventeen counts of
making false, fictitious, or fraudulent claims; and (3) two counts
of making false, fictitious, or fraudulent statements or material
misrepresentations. 18 U.S.C. §§ 371, 287, 1001 (2000). Leal also
challenges his sentence. We AFFIRM.
*
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this opinion should not be published and is not precedent except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.
All of Leal’s convictions stem from his actions as a United
States Postal Service (“USPS”) employee. Leal was a Delivery
Service Supervisor in charge of vehicle maintenance and repairs at
the USPS postal facility in Del Rio, Texas. The indictment alleged
that Leal conducted a conspiracy and committed subsequent offenses
by engaging in various improprieties with Jose Hinojosa
(“Hinojosa”), another USPS employee. Each count involved a scheme
by which Hinojosa and Leal would submit invoices to the USPS that
reflected charges for excessive labor, work not performed,
unnecessary repairs, or unnecessary parts.
Leal’s case proceeded to jury trial on twenty-one closely
related counts. At the close of all the evidence, Leal moved for
a judgment of acquittal on all counts, pointing to alleged
deficiencies in the evidence relating to each count. The district
court denied the motion, and the jury later convicted Leal on
twenty of the twenty-one counts. Leal was sentenced to a twenty-
seven-month term of imprisonment on each count, to run
concurrently, and a three-year term of supervised release, and he
was ordered to provide restitution in the amount of $3129.85. This
timely appeal followed.
Leal challenges the sufficiency of the evidence as to all
twenty counts. In reviewing a challenge to the sufficiency of the
evidence, this Court asks whether a reasonable jury could have
found that the evidence established the essential elements of the
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crime beyond a reasonable doubt. United States v. Martinez-Lugo,
411 F.3d 597, 599 (5th Cir. 2005). The evidence, and any
reasonable inference that can be drawn from it, is to be considered
in the light most favorable to the jury verdict. Id. “[T]he
evidence need not exclude every reasonable hypothesis of
innocence,” but a conviction is to be reversed “if the evidence
construed in favor of the verdict gives equal or nearly equal
circumstantial support to a theory of guilt and a theory of
innocence of the crime charged.” United States v. Miller, 146 F.3d
274, 280 (5th Cir. 1998). After a thorough review of the briefs,
oral arguments of the parties, and relevant portions of the record,
we conclude that a reasonable jury could have found Leal guilty
beyond a reasonable doubt on each count.
Leal also challenges his sentence under United States v.
Booker, 125 S. Ct. 738 (2005). Because we have determined that
Leal did not raise a constitutional challenge to his sentence
below, we review Leal’s sentence under the plain error standard.
See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005). We
will “correct an error the defendant failed to raise in the
district court” only when “there is (1) error, (2) that is plain,
and (3) that affects substantial rights.” Id. (internal quotation
marks omitted). Leal points to nothing in the record demonstrating
that the district court would have reached a significantly
different result “sentencing under an advisory scheme rather than
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a mandatory one.” See id. at 521. Thus, Leal has not satisfied
the third prong of the plain error test. See id.
AFFIRMED.
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