United States Court of Appeals

for the Fifth Circuit

No. 21-20564

United States of America,

Plaintiff—Appellee,

versus

Jason Edward Simpson,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CR-630-3

Before Higginbotham, Jones, and Oldham, Circuit Judges.

Per Curiam:*

A jury convicted Jason Edward Simpson on three drug-related counts

and one gun-related count. On direct appeal, Simpson challenges the 

sufficiency of the evidence. We affirm.

I.

On August 14, 2018, an undercover Houston Police Department 

(“HPD”) detective texted a narcotics supplier to buy a pint of promethazine

* This opinion is not designated for publication. See 5th Cir. Rule 47.5.

United States Court of Appeals

Fifth Circuit

FILED

January 9, 2023

Lyle W. Cayce

Clerk

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containing codeine (i.e., “lean syrup”). Later that day, two undercover 

detectives met the supplier—Fernando Melendez—at a house on Santiago 

Street in Houston. Melendez’s supplier, Jose Garza, arrived shortly 

thereafter with the lean syrup. The detectives exchanged marked money for 

the pint of lean syrup. But later lab tests revealed that the pint contained no

controlled substances.

On August 19, 2018, Melendez texted an HPD detective and informed

him that he had “tabs and bars” available. “Tabs” refers to ecstasy or 

MDMA; “bars” refers to Xanax. Melendez quoted the detective $1,500 for 

2,000 ecstasy pills. Three days later the detectives again met Melendez at the 

Santiago Street house. When they arrived, they noticed a black Lincoln 

Navigator and a white Buick Enclave parked outside. Melendez told one 

detective to hop in the Navigator’s back passenger seat. Garza sat in the 

driver’s seat, and Melendez sat in the front passenger seat. The defendant—

Jason Edward Simpson—sat in the backseat next to the HPD detective. 

Simpson said he supplied the pills, the pills were “A1,” and that he used to 

supply “the entire Third Ward” of Houston. After these introductory 

remarks, Simpson handed a bag of pills to the undercover detective, who said

the pills looked good and asked if he could get a bigger quantity. Although the 

initial agreement was for 2,000 pills, there were about 1,350 in the bag. 

Simpson adjusted the rate accordingly, and the detective paid Melendez 

$1,350 for the pills. Melendez kept a small portion of the money and gave a 

larger portion to Simpson.

On August 30, 2018, Melendez agreed to sell 5,000 ecstasy pills to the 

HPD detectives for $4,000. Later that day, the detectives arrived at the 

Santiago house and saw a red Pontiac G6 and a black Toyota Tacoma parked 

out front. When they arrived, Melendez was waiting outside. Simpson 

hopped out of the Tacoma with a plastic grocery bag. He held it open and 

showed the detectives a kaleidoscopic mix of tablets. Melendez directed

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everyone inside the red Pontiac. Same seats as last time: Garza in the driver’s 

seat, Melendez in the front passenger seat, and Simpson in the backseat with 

the HPD detective. Simpson placed the white grocery bag on the center 

console and explained that the pills were better quality than last time because 

they were from a different source. The HPD detective said the money was in 

his car and went to get it.

That’s when the arrest team swooped in and arrested everyone, 

including Simpson. (Michael Manning and G.H., who remained in the 

Tacoma while the meeting went down in the Pontiac, were arrested too.) The 

arrest team recovered the grocery bag full of pills from the Pontiac, a loaded 

7.62x25mm handgun1 on the front passenger floorboard of the Pontiac, and 

an accompanying magazine. They also recovered a handgun under the 

driver’s seat of the Tacoma, a loaded 9mm XTM Springfield Armory pistol. 

Garza later testified that (1) the 7.62x25mm handgun in the Pontiac belonged 

to him, (2) Simpson supplied the pills for both the August 22 and August 30 

transactions, and (3) he and Simpson had been good friends from their 

neighborhood for three years.

The Government charged Simpson with five drug-trafficking-related 

offenses. A jury convicted Simpson on four of the five counts. See 21 U.S.C. 

§§ 846, 841(a)(1), (b)(1)(C) (conspiracy to possess with intent to distribute 

3,4 methylenedioxy-methamphetamine (ecstasy)) (Count One); 21 U.S.C. 

§ 841(a)(1), (b)(1)(B)(viii), 18 U.S.C. § 2 (possession with intent to distribute 

50 grams or more of methamphetamine) (Count Two); 21 U.S.C. 

1 The Government refers to this weapon as a “7.62 caliber handgun.” Red Br. 15.

But “caliber” refers to imperial cartridge diameters, not metric ones. Thus, a “7.62 

caliber” weapon would shoot a bullet that is 7.62 inches wide, which is fatter than modern 

naval artillery rounds. The weapon found on the floorboard of the Pontiac was a PW Arms 

pistol chambered in 7.62x25mm Tokarev.

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§ 841(a)(1), (b)(1)(B)(viii), 18 U.S.C. § 2 (possession with intent to distribute 

500 grams or more of methamphetamine) (Count Three); 18 U.S.C. 

§§ 924(c)(1)(A), (o), 2 (conspiracy to use, carry, or possess a firearm during 

and in relation to a drug trafficking offense) (Count Five). The district court 

gave Simpson a below-Guidelines sentence: four concurrent 168-month 

terms of imprisonment and five years of supervised release. Simpson timely 

appealed.

II.

Simpson raises two sufficiency-of-the-evidence challenges.2 Under 

our precedent, where the defendant chooses not to present his own evidence, 

a boilerplate objection at the close of the Government’s case is sufficient to 

preserve a sufficiency challenge. See United States v. Kieffer, 991 F.3d 630, 

634 & n.1 (5th Cir. 2021) (simply asserting “Rule 29” is enough); id. at 637–

41 (Oldham, J., concurring in the judgment) (criticizing that result). Simpson 

made such a boilerplate objection here, so our review is de novo. See id. at 634 

(majority op.). Even so, the sufficiency standard is extremely difficult to 

meet: We will affirm the jury’s verdict “unless, viewing the evidence and 

reasonable inferences in the light most favorable to the verdict, no rational 

jury could have found the essential elements of the offense to be satisfied 

beyond a reasonable doubt.” United States v. Ganji, 880 F.3d 760, 767 (5th 

Cir. 2018) (quotation omitted). Simpson cannot come close to meeting that 

standard.

2 Simpson also raises a statutory-interpretation challenge but concedes it is 

foreclosed by our precedent. See United States v. Betancourt, 586 F.3d 303, 308–09 (5th Cir. 

2009) (concluding that “knowing” in 21 U.S.C. § 841(a) does not apply to the type and 

quantity determinations under 21 U.S.C. § 841(b)).

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A.

Simpson argues the evidence the Government introduced to prove 

that he conspired to possess a firearm in relation to a drug trafficking crime 

was insufficient to support his conviction. We disagree.

To sustain a conviction for conspiracy to possess a firearm during a 

drug trafficking crime, the Government must prove (1) an agreement to 

commit the crime, (2) the defendant knew about the agreement, and (3) the 

defendant voluntarily participated in the agreement. See United States v. 

Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 2014) (en banc). But a formal 

agreement is not required; the jury may infer knowledge of and involvement 

in the conspiracy from the defendant’s conduct and the surrounding 

circumstances. See United States v. Grant, 683 F.3d 639, 643 (5th Cir. 2012); 

see also United States v. McClaren, 13 F.4th 386, 414 (5th Cir. 2021) 

(“Conspiracies must feature an agreement, although the agreement can be 

informal and unspoken. The agreement can be proven by circumstantial 

evidence alone.” (quotation omitted)).

A rational juror had ample evidence to convict Simpson of conspiracy

to possess a gun. The arresting officers found handguns in both vehicles at 

the scene of the August 30 drug transaction, and Simpson was charged with 

conspiracy to possess the loaded PW Arms 7.62x25mm pistol found in the 

Pontiac G6 in relation to a drug trafficking offense. Garza testified that the 

pistol belonged to him. Simpson and Garza were neighborhood friends for at 

least three years before the transaction, and Simpson was a routine supplier 

for Garza. An HPD detective testified that he found the handgun in plain 

view on the front passenger floorboard at Melendez’s feet. A magazine and 

unspent cartridges of ammunition were also found in the Pontiac G6. A 

second handgun (a loaded 9mm XTM Springfield Armory handgun) was 

found under the driver’s seat in the Tacoma. Manning admitted the 

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Springfield pistol found in the Tacoma belonged to him. It is undisputed that 

Simpson was present in both cars during the encounter before the arrest team 

arrived.

Moreover, after his arrest, Simpson sent two inmate emails that FBI 

agents intercepted. In those emails, Simpson stated that the reason he was 

present on August 30 was to provide security and to prevent a robbery. Based 

on these emails, an FBI agent told the jury Simpson was present on August 

30 as “muscle” and testified that guns are usually carried or nearby and 

available during such drug transactions. See United States v. Walker, 750 F. 

App’x 324, 328 (5th Cir. 2018) (guns are a “tool of the drug trade”).

True, Simpson’s co-conspirators cooperated with the Government 

and testified in hopes of getting more lenient sentences. But credible 

testimony from cooperating co-conspirators is sufficient to sustain a 

conspiracy conviction. See McLaren, 13 F.4th at 400 (“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.”). And nothing indicates that the testimony of Garza, 

Melendez, or Manning was either incredible or unbelievable. Thus, we reject 

Simpson’s first sufficiency challenge.

B.

Simpson also argues that the evidence supporting his conviction for 

possession of 500 grams or more of a mixture containing detectible amounts 

of methamphetamine is insufficient. Specifically, he claims that the 

Government’s forensic analyst used a defective sampling plan to test 

Simpson’s drugs. Again, we disagree.

The forensic analyst used a sampling plan that is consistent with 

industry practice for testing large samples. He divided the pills into groups 

by color, randomly selected 29 samples from each color group to test, and 

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then tested them using two different testing methods (chemical spot test and 

GCMS). The sampling plan, chemical spot test, and GCMS were all 

performed in accordance with the standard protocol promulgated by field 

experts. After verifying that all the instruments were performing properly, 

the forensic analyst administered the two different tests on each of the 29 

pills in the color subsets, and they all tested positive for methamphetamine. 

The total net weight of the entire sampling plan was 529.90 grams, which is 

over 500 grams.

A rational jury could obviously rely on the forensic analyst’s 

uncontroverted testimony that the method he used to test the 

methamphetamine was consistent with industry practice. Simpson points to

no authority showing that the industry-wide practice the forensic analyst 

used here was inaccurate or unreliable.

AFFIRMED.

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