United States v. Gomez-Perez

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 7, 2000
• Docket: 99-40929
• Status: Unpublished

Opinion

No. 99-40929 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40929 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORBERTO GOMEZ-PEREZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. L-99-CR-178-1 - - - - - - - - - - June 28, 2000 Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Norberto Gomez-Perez appeals his conviction after a jury

trial of conspiracy to possess with intent to distribute

marihuana and possession with intent to distribute marihuana in

violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841, 846. He argues

that the evidence was insufficient to support his conviction.

In reviewing the sufficiency of the evidence to support a

conviction, the evidence is viewed “in the light most favorable

to the government, giving the government the benefit of all

reasonable inferences and credibility choices.” United States v.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40929 -2-

Galvan, 949 F.2d 777, 783 (5th Cir. 1991) (internal quotations

and citation omitted). Because Gomez-Perez did not move for a

judgment of acquittal at the close of the Government’s case or at

the close of presentation of the evidence, this court’s review of

the sufficiency of the evidence is limited to the determination

of whether there was a “manifest miscarriage of justice.” United

States v. Johnson, 87 F.3d 133, 136 (5th Cir. 1996). A

miscarriage of justice exists “only if the record is devoid of

evidence pointing to guilt” or “the evidence on a key element of

the offense was so tenuous that a conviction would be shocking.”

United States v. Laury, 49 F.3d 145, 151 (5th Cir. 1995)

(internal quotations and citation omitted). Our review of the

record does not support such a holding. See United States v.

Barnard, 553 F.2d 389, 393 (5th Cir. 1977).

Therefore, Gomez-Perez’s conviction is AFFIRMED.