* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50420

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN ALBERTO CEDILLO; JAVIER DE LA PENA,

Defendants-Appellants.

--------------------

Appeals from the United States District Court

for the Western District of Texas

USDC No. 2:03-CR-224-3-AML

--------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Following a jury trial, Juan Alberto Cedillo and Javier De

La Pena were each convicted of both possessing and importing

cocaine and acquitted of related crack charges. Cedillo appeals

his conviction on the importation charge, and both defendants

appeal their sentences.

Cedillo argues that the evidence is insufficient to sustain

his conviction for importation of cocaine. Because Cedillo did

not renew his motion for judgment of acquittal following the
No. 04-50420

-2-

1United States v. Green, 293 F.3d 886, 895 (5th Cir. 2002).

2United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004).

3125 S. Sct. 738 (2005).

4See United States v. Akpan, 407 F.3d 360, 376 (5th Cir.

2005).

close of all evidence, we review only to determine whether there

was “a manifest miscarriage of justice.”1 Under this standard,

Cedillo will receive relief only if the record wholly lacks

evidence of his guilt or if the evidence of guilt is “so tenuous

that a conviction if shocking.”2 This standard is not met. 

Rather, there was plentiful evidence that Cedillo knowingly

played a part in bringing cocaine into the United States - he

even admitted that he had gone into Mexico to buy cocaine. 

Consequently, Cedillo’s importation conviction is AFFIRMED.

Cedillo and De La Pena both contend that their sentences are

contrary to United States v. Booker.

3 They argue that their

Sixth Amendment rights were violated because their sentences were

based on drug-quantity facts neither admitted by them nor found

by a jury. Both defendants preserved this claim for appeal by

objecting to Sentencing Guidelines calculations and arguing that

their sentences should not be based on quantities of drugs

related to the crack charges for which they were acquitted.4

As the Government concedes, the district court erred by

basing the defendants’ sentences on drug-quantity facts neither
No. 04-50420

-3-

5See United States v. Pineiro, 410 F.3d 282, 285-86 (5th

Cir. 2005).

6See id.

7See Akpan, 407 F.3d at 377 n.62.

admitted by the defendants nor found by a jury.5 Further, the

Government has not shown this error to be harmless.6 Thus,

Cedillo’s and De La Pena’s sentences are VACATED, and the case is

REMANDED FOR RESENTENCING. Because resentencing is warranted,

there is no need to address the defendants’ remaining sentencing

claims.7

Cedillo was acquitted of possession with intent to

distribute and convicted of the lesser-included offense of simple

possession, but the judgment of conviction signed by the district

court states that he was convicted of the former. No one

suggests that the district court did not sentence Cedillo for the

correct crime. We leave to the district court correction of

clerical error.

The judgments of conviction are AFFIRMED, the sentences are

VACATED, and the case is REMANDED to the district court for

further proceedings consistent with this opinion.