United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 28, 2007
Charles R. Fulbruge III
Clerk
No. 05-41462
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL VENUSTIANO LOZANO-AVILA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-444-ALL
Before GARWOOD, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
A jury convicted Daniel Venustiano Lozano-Avila (Lozano) of
possession with intent to distribute more than 100 kilograms of
marihuana. The court sentenced him to 63 months of imprisonment,
based, at least in part, on the drug quantity of about 350 pounds
or some 158.76 kilograms.
Lozano contends that inadmissible documentary hearsay was
*
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opinion should not be published and is not precedent except under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.
admitted even though no hearsay exception applied. The document of
which he complains was admitted to prove its falsity. It was
therefore not hearsay, and no hearsay exception was relevant. See
United States v. Adkins, 741 F.2d 744, 746 (5th Cir. 1984).
Lozano also contends that the Government failed to prove the
alleged drug quantity. A DEA agent testified that the marihuana
weighed more than 100 kilograms.** Lozano neither objected to the
testimony nor rebutted the evidence, nor did he preserve the
objection in his Rule 29 motions for judgment of acquittal which
asserted (and only asserted) lack of guilty knowledge on his part
(a contention not raised on appeal). After being instructed to
determine whether the drug quantity exceeded 100 kilograms, the
jury found Lozano guilty as charged. The evidence of drug quantity
was sufficient because a reasonable jury could have found that the
Government proved that quantity beyond a reasonable doubt. See
United States v. Daniel, 957 F.2d 162, 164 (5th. Cir. 1992); cf.
United States v. Herrera, 313 F.3d 882, 885 (5th Cir. 2002)
(applying more stringent standard where specific issue was not
addressed in motion for acquittal which raised another specific
issue).
The judgment of the district court is
**
Other evidence reflected there were some 40 to 45 bundles of
marihuana, pictures of which show them filling a concealed space
occupying the entire bed of defendant’s pickup truck to a depth of
a foot or more.
2
AFFIRMED.
3