United States v. Rios

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
January 24, 2008
No. 07-10334
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

EFRAIN RIOS

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:06-CR-27-5

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
Efrain Rios appeals his conviction by a jury of conspiracy to distribute and
possess with the intent to distribute more than five kilograms of cocaine. Rios
argues that the evidence was insufficient to prove that the conspiracy involved
an amount of cocaine in excess of five kilograms. Because Rios failed to move for
a judgment of acquittal, his sufficiency challenge is reviewed only for a manifest
miscarriage of justice. United States v. Avants, 367 F.3d 433, 449 (5th Cir.

*
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should not be published and is not precedent except under the limited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. 07-10334

2004). Such a miscarriage of justice occurs when the record is “devoid of
evidence of guilt or the evidence [is] so tenuous that a conviction is shocking.”
Id.
Rios argues that Ana Laura Silva’s testimony did not establish an amount
of cocaine attributable to the conspiracy. Although he acknowledges that Silva’s
testimony confirmed that she delivered between five and seven kilograms of
cocaine, Rios contends that her testimony is opinion testimony and that she has
no basis for such an opinion. Silva testified that she carried the drugs on her
person on numerous occasions, and she further testified that she transported
cocaine in one kilogram amounts. Her testimony did not amount to inadmissible
opinion testimony. Rather, she was providing a factual answer to a question as
to how much cocaine she had carried on her body. The record is not devoid of
evidence as to the amount of cocaine attributable to the conspiracy, and, as such,
Rios’s conviction does not constitute a manifest miscarriage of justice.
Accordingly, the judgment of the district court is AFFIRMED.

2