United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-31084
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO MOLINA-AGUILAR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CR-343-ALL
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Guillermo Molina-Aguilar (Molina) appeals following his
conviction for attempting to possess with intent to distribute
more than five kilograms of cocaine hydrochloride. Molina argues
that his trial counsel rendered ineffective assistance by failing
to move for judgment of acquittal. An ineffective assistance
claim is ordinarily not reviewed on direct appeal, but we will
review such a claim when the record is sufficiently developed.
See United States v. Rosalez-Orozco, 8 F.3d 198, 199 (5th Cir.
1993). Because the record contains all of the evidence necessary
*
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this opinion should not be published and is not precedent except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. 05-31084
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with respect to Molina’s ineffective assistance claim, we will
review it in the interest of judicial economy. See id.
To show ineffective assistance of counsel, a defendant must
show that his attorney’s performance was deficient and that the
deficiency prejudiced his defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). If the defendant makes an insufficient
showing on either element, the claim fails. Id. at 697.
To establish prejudice in this context, Molina must show
that “it is a reasonable probability that had counsel moved for a
judgment of acquittal, the motion would have been granted on the
basis of insufficiency of evidence.” Rosalez-Orozco, 8 F.3d at
199. We examine “whether, viewing the evidence and the
inferences that may be drawn from it in the light most favorable
to the verdict, a rational jury could have found the essential
elements of the offenses beyond a reasonable doubt.” Id. at 200
(internal quotation marks and citation omitted). The evidence,
both direct and circumstantial, is viewed “in the light most
favorable to the jury verdict” and “[a]ll credibility
determinations and reasonable inferences are to be resolved in
favor of the verdict.” United States v. Resio-Trejo, 45 F.3d
907, 910-11 (5th Cir. 1995).
Molina contends that the evidence was insufficient to show
that he knowingly attempted to possess a controlled substance, as
opposed to some other form of contraband. The trial evidence
showed that a confidential source (CS) for the DEA arranged to
No. 05-31084
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sell 20 kilograms of cocaine to two drug dealers for $240,000.
The drug dealers told the CS that “Guillermo” would travel from
Houston to New Orleans with the money to purchase the drugs.
Molina arrived at the agreed location for the transaction. The
evidence, which included tape recorded conversations between the
CS and the drug dealers and between the CS and Molina, showed
that Molina was given instructions about the transaction and was
in contact with the drug dealers before and during the meeting.
Molina agreed with the CS that a “quiet” place was needed for the
transaction, meaning a location free from police intrusion.
Molina possessed a box concealed in his truck with an amount
written on the outside of the box that was nearly equal to the
amount of the agreed purchase price. Molina cut open the box to
show the CS the money, which was wrapped in cellophane in a
manner consistent with use in the drug trade. When the CS used
code words to refer to the drugs, Molina expressed no confusion
and had no apparent difficulty understanding the CS.
We conclude that, viewed in the light most favorable to the
verdict, the evidence was sufficient for a rational jury to
conclude that Molina knew he was attempting to possess a
controlled substance. See Rosalez-Orozco, 8 F.3d at 200;
Resio-Trejo, 45 F.3d at 910-11. Because the evidence was
sufficient to support the conviction, Molina has not shown that
he was prejudiced by counsel’s failure to move for judgment of
acquittal. See Rosalez-Orozco, 8 F.3d at 202.
No. 05-31084
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Accordingly, the judgment of conviction is AFFIRMED.