United States v. Rogers

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 9, 2003

Charles R. Fulbruge III Clerk No. 02-41253 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SHANNON ROGERS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-02-CR-31-3 --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Shannon Rogers appeals his conviction and sentence for

conspiracy to possess with the intent to distribute less than one

gram of LSD. We affirm.

Rogers’s argument that the Government’s “sham prosecution”

violated the Double Jeopardy Clause is waived because it is

raised for the first time on appeal. See United States v. Moore,

958 F.2d 646, 650 (5th Cir. 1992). His assertion that the

district court clearly erred in calculating his criminal history

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41253 -2-

score is devoid of argument, citation to legal authority, and

facts explaining why the district court’s determination was

incorrect; it is therefore also waived but for inadequate

briefing. See United States v. Posado-Rios, 158 F.3d 832, 867

(5th Cir. 1998).

Finally, the testimony of Michael Barnett and Frank Jaycox

was sufficient to support Rogers’s conviction. See United States

v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). To the extent

that Rogers challenges their credibility, the jury is the final

arbiter of the credibility of witnesses, like Barnett and Jaycox,

whose testimony is not incredible or facially insubstantial. See

United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).

AFFIRMED.