IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 99-10865 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS HERNANDEZ,
Defendant-Appellant.
-------------------- Appeals from the United States District Court for the Northern District of Texas USDC No. 6:98-CR-64-14-C -------------------- May 22, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:*
Jesus Hernandez appeals his convictions and sentences for
conspiracy to distribute and possess with intent to distribute
1,000 kilograms or more of marijuana and possession with intent
to distribute 172 kilograms of marijuana. Hernandez contends
that the evidence was not sufficient to establish his knowledge
and participation in the drug conspiracy and that he knowingly
possessed marijuana with the intent to distribute. He asserts
that there was a variance that affected his substantial rights
between the indictment charging him with conspiracy to distribute
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10865 -2-
and possess with intent to distribute 1,000 kilograms or more of
marijuana and the evidence presented at trial. Hernandez
challenges the drug quantity that the district court used to
establish his base offense level. Finally, Hernandez contends
that the district court did not make sufficient findings to
justify an increase in his offense level for obstruction of
justice due to perjury.
Because Hernandez did not move in the district court for a
judgment of acquittal, our review of the sufficiency of the
evidence is limited to the determination of “whether there was a
manifest miscarriage of justice.” United States v. Laury, 49
F.3d 145, 151 (5th Cir. 1995)(citation omitted). 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.”
Laury, 49 F.3d at 151 (internal quotations and citation
omitted).
A guilty verdict may be supported solely by uncorroborated
testimony of a coconspirator, even if the witness is interested
in a plea bargain or promise of leniency, provided that the
testimony is not “incredible or insubstantial on its face.”
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
“Testimony is incredible as a matter of law only if it relates to
facts that the witness could not possibly have observed or to
events which could not have occurred under the laws of nature.”
Id. No. 99-10865 -3-
The record is not devoid of evidence of Hernandez’s guilt on
the conspiracy and possession charges. The Government’s
presentation of Hernandez’s coconspirator’s testimony was
sufficient evidence. See Bermea, 30 F.3d at 1552. The jury is
the arbiter of a witness’s credibility. See United States v.
Cravero, 530 F.2d 666, 670 (5th Cir. 1976).
Hernandez did not raise the fatal-variance issue in the
district court; thus, review is for plain error only. See United
States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994). We will
correct forfeited errors only when the appellant shows the
following factors: (1) there is an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en
banc)(citing United States v. Olano, 507 U.S. 725, 730-36
(1993)). The decision to correct the forfeited error is within
our sound discretion, and we will not exercise that discretion
unless the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Olano, 507 U.S. at
736.
Hernandez has not shown error, much less plain error,
concerning any variance that affected his substantial rights.
See United States v. Morgan, 117 F.3d 849, 858-59 (5th Cir.
1997)(when indictment alleges single conspiracy, and evidence
establishes multiple conspiracies and defendant’s involvement in
at least one conspiracy, there is no variance affecting that
defendant’s substantial rights). No. 99-10865 -4-
Hernandez did not object to the drug quantity established in
the presentence report and at sentencing. Our review is thus for
plain error only. See United States v. McCaskey, 9 F.3d 368, 376
(5th Cir. 1993)(failure to object to PSR or at sentencing means
appellate review is for plain error only). “Plain error is error
so obvious and substantial that failure to notice it would affect
the fairness, integrity, or public reputation of the judicial
proceedings and would result in manifest injustice.” Id.
(citation omitted). “Questions of fact capable of resolution by
the district court upon proper objection at sentencing can never
constitute plain error.” Id. (citation and internal quotations
The presentence report is considered reliable evidence for
sentencing purposes. United States v. Vital, 68 F.3d 114, 120
(5th Cir. 1995). Because Hernandez did not object to the
presentence report and did not submit relevant evidence to rebut
the information in the presentence report, the district court’s
adoption of the facts contained in the presentence report,
without further inquiry, was not plain error. See United States
v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994); United States
v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
We review the district court’s factual finding that a
defendant has obstructed justice under U.S.S.G. § 3C1.1 for clear
error. United States v. Storm, 36 F.3d 1289, 1295 (5th Cir.
1994). Because Hernandez objected to the sentence enhancement
for perjury, the district court was required to “review the
evidence and make independent findings necessary to establish a No. 99-10865 -5-
willful impediment to or obstruction of justice, or an attempt to
do the same, under the perjury definition.” United States v.
Como, 53 F.3d 87, 89 (5th Cir. 1995) (citing United States v.
Dunnigan, 507 U.S. 87, 95 (1993)). Separate and clear findings
on each element of the alleged perjury are not required. See
Como, 53 F.3d at 89 (citation omitted).
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 99-10865 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS HERNANDEZ,
Defendant-Appellant.
-------------------- Appeals from the United States District Court for the Northern District of Texas USDC No. 6:98-CR-64-14-C -------------------- May 22, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:*
Jesus Hernandez appeals his convictions and sentences for
conspiracy to distribute and possess with intent to distribute
1,000 kilograms or more of marijuana and possession with intent
to distribute 172 kilograms of marijuana. Hernandez contends
that the evidence was not sufficient to establish his knowledge
and participation in the drug conspiracy and that he knowingly
possessed marijuana with the intent to distribute. He asserts
that there was a variance that affected his substantial rights
between the indictment charging him with conspiracy to distribute
* 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. 99-10865 -2-
and possess with intent to distribute 1,000 kilograms or more of
marijuana and the evidence presented at trial. Hernandez
challenges the drug quantity that the district court used to
establish his base offense level. Finally, Hernandez contends
that the district court did not make sufficient findings to
justify an increase in his offense level for obstruction of
justice due to perjury.
Because Hernandez did not move in the district court for a
judgment of acquittal, our review of the sufficiency of the
evidence is limited to the determination of “whether there was a
manifest miscarriage of justice.” United States v. Laury, 49
F.3d 145, 151 (5th Cir. 1995)(citation omitted). 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.”
Laury, 49 F.3d at 151 (internal quotations and citation
omitted).
A guilty verdict may be supported solely by uncorroborated
testimony of a coconspirator, even if the witness is interested
in a plea bargain or promise of leniency, provided that the
testimony is not “incredible or insubstantial on its face.”
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
“Testimony is incredible as a matter of law only if it relates to
facts that the witness could not possibly have observed or to
events which could not have occurred under the laws of nature.”
Id. No. 99-10865 -3-
The record is not devoid of evidence of Hernandez’s guilt on
the conspiracy and possession charges. The Government’s
presentation of Hernandez’s coconspirator’s testimony was
sufficient evidence. See Bermea, 30 F.3d at 1552. The jury is
the arbiter of a witness’s credibility. See United States v.
Cravero, 530 F.2d 666, 670 (5th Cir. 1976).
Hernandez did not raise the fatal-variance issue in the
district court; thus, review is for plain error only. See United
States v. Rodriguez, 15 F.3d 408, 414 (5th Cir. 1994). We will
correct forfeited errors only when the appellant shows the
following factors: (1) there is an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en
banc)(citing United States v. Olano, 507 U.S. 725, 730-36
(1993)). The decision to correct the forfeited error is within
our sound discretion, and we will not exercise that discretion
unless the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Olano, 507 U.S. at
736.
Hernandez has not shown error, much less plain error,
concerning any variance that affected his substantial rights.
See United States v. Morgan, 117 F.3d 849, 858-59 (5th Cir.
1997)(when indictment alleges single conspiracy, and evidence
establishes multiple conspiracies and defendant’s involvement in
at least one conspiracy, there is no variance affecting that
defendant’s substantial rights). No. 99-10865 -4-
Hernandez did not object to the drug quantity established in
the presentence report and at sentencing. Our review is thus for
plain error only. See United States v. McCaskey, 9 F.3d 368, 376
(5th Cir. 1993)(failure to object to PSR or at sentencing means
appellate review is for plain error only). “Plain error is error
so obvious and substantial that failure to notice it would affect
the fairness, integrity, or public reputation of the judicial
proceedings and would result in manifest injustice.” Id.
(citation omitted). “Questions of fact capable of resolution by
the district court upon proper objection at sentencing can never
constitute plain error.” Id. (citation and internal quotations
The presentence report is considered reliable evidence for
sentencing purposes. United States v. Vital, 68 F.3d 114, 120
(5th Cir. 1995). Because Hernandez did not object to the
presentence report and did not submit relevant evidence to rebut
the information in the presentence report, the district court’s
adoption of the facts contained in the presentence report,
without further inquiry, was not plain error. See United States
v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994); United States
v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
We review the district court’s factual finding that a
defendant has obstructed justice under U.S.S.G. § 3C1.1 for clear
error. United States v. Storm, 36 F.3d 1289, 1295 (5th Cir.
1994). Because Hernandez objected to the sentence enhancement
for perjury, the district court was required to “review the
evidence and make independent findings necessary to establish a No. 99-10865 -5-
willful impediment to or obstruction of justice, or an attempt to
do the same, under the perjury definition.” United States v.
Como, 53 F.3d 87, 89 (5th Cir. 1995) (citing United States v.
Dunnigan, 507 U.S. 87, 95 (1993)). Separate and clear findings
on each element of the alleged perjury are not required. See
Como, 53 F.3d at 89 (citation omitted).
The district court found that Hernandez testified
untruthfully and adopted the presentence report and its guideline
analysis. The findings in the presentence report are thus the
findings of the district court. See United States v. Cabral-
Castillo, 35 F.3d 182, 186 (5th Cir. 1994). We have “upheld an
implicit finding of materiality when [the district court]
determined that the false testimony was obviously material in
that it was clearly designed to substantially affect the outcome
of the case.” Como, 53 F.3d at 90 (citations and internal
quotations omitted). The false testimony given by Hernandez was
material because it related directly to his knowledge and
participation in the drug activities that form the basis for his
convictions. This testimony would be designed to affect the
outcome of the case. The district court’s findings were
sufficient to justify the obstruction of justice enhancement.
AFFIRMED.