United States v. Allen

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 10, 2006

Charles R. Fulbruge III Clerk No. 05-41256 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES ROBERT ALLEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 2:05-CR-154 --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

James Robert Allen was convicted by a jury of possession

with intent to distribute approximately 40 kilograms of cocaine.

Allen was sentenced to 151 months of imprisonment and to a five-

year term of supervised release. On appeal, he argues that there

was insufficient evidence to prove that he knew the cocaine was

in the gas tank of his vehicle.

Because Allen moved for a judgment of acquittal at the close

of the Government’s case and the close of all evidence, the issue

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-41256 -2-

is preserved for review. See FED. R. CRIM. P. 29. Therefore, the

standard of review in assessing the sufficiency challenge is

“whether, considering all the evidence in the light most

favorable to the verdict, a reasonable trier of fact could have

found that the evidence established guilt beyond a reasonable

doubt.” United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.

2000). The evidence need not exclude every reasonable hypothesis

of innocence or be inconsistent with every conclusion except that

of guilt. United States v. Resio-Trejo, 45 F.3d 907, 911 (5th

Cir. 1995). In the instant case, there was sufficient evidence

from which the jury could infer that Allen knew the cocaine was

hidden in his vehicle’s gas tank. See United States v.

Villarreal, 324 F.3d 319, 324 (5th Cir. 2003); United States v.

Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).

Allen also argues that the district court abused its

discretion in allowing certain opinion evidence by a federal law

enforcement agent. The law enforcement agent’s drug trafficking

testimony was offered as a “mere explanation of [his] analysis of

the facts,” rather than a “forbidden opinion” regarding an

ultimate issue in the case. See United States v. Gutierrez-

Farias, 294 F.3d 657, 663 (5th Cir. 2002) (internal quotation

marks and citations omitted). However, the law enforcement agent

did offer an improper opinion regarding Allen’s knowledge of the

drugs when the agent testified that he was not telling the jury

that he did not believe that Allen had no knowledge of the drugs. No. 05-41256 -3-

See id. Nevertheless, any error by the district court in

allowing the testimony was harmless because the agent’s statement

“constituted only a small portion of an otherwise strong case.”

Id.1

Lastly, Allen argues that his sentence must be vacated

because the district court failed to articulate any application

of the factors set out in 18 U.S.C. § 3553(a) to the facts of his

case. At sentencing, the district court noted that it considered

the factors set forth in § 3553(a), including Allen’s past

record. The district court imposed a sentence within the

properly calculated guidelines range. Accordingly, the sentence

is presumed reasonable. See United States v. Alonzo, 435 F.3d

551, 553 (5th Cir. 2006). Allen fails to rebut the presumption

that the sentence imposed was reasonable. See id. Accordingly,

Allen’s conviction and sentence are AFFIRMED.

1 Moreover, as a matter of logic, the agent stated he was “not saying he thought Allen had knowledge,” a statement favorable to Allen. Of course, given the confusion of the statement and its context, the jury likely thought it unfavorable to Allen. Yet its confusing nature buttresses our conclusion that the statement was only a “small part” of an otherwise strong case.