# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 21

- 50315

**United States of America,**

Plaintiff

— Appellee **,**

versus

**Samuel Morales,**

Defendant

— Appellant

**.**

Appeal from the United States District Court for the Western District of Texas USDC No. 7:20

- CR

- 159

- 2

Before **Southwick, Haynes,** and **Higginson,** Circuit Judges

**. Per Curiam**  **:** *

Samuel Morales a ppe als his conviction for conspiracy to possess with intent to distribute 100 grams or more of heroin. He argues that the re was

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 20, 2022
Lyle W. Cayce Clerk Case: 21-50315 Document: 00516287740 Page: 1 Date Filed: 04/20/2022No. 21

- 50315

2 insufficient evidence to support his conviction , and that the district court
erred in a dmitting certain hearsay testimony. 1 W e **AFFIRM**

. With respect to the insufficient evidence challenge, Morales’s
conviction arises out of an alleged conspiracy with another individual, George
Galindo. The evidence presented supported the conclusion that Galindo , who left his visit with Morales carrying a black camera bag that contained 139 grams of heroin, obtained that bag during his visit with Morales

. A side from the black camera bag, t here was addit ional evidence and testimony that would allow the jury to reasonably infer that Morales agreed to, knew of , and voluntarily participated in a drug conspiracy with Galindo , including: (1) the ledger found in Morales’s motel room with his name in it , (2) the motel receipts that investigators found in Morales’s room, (3) Sergeant Sanchez’s testimony regarding motel room use by drug dealers, (4) Morales’s admission that he knew Galindo, and (5) Morales ’s dishonesty regarding t he
reason Galindo was at the motel

. In light of this evidence, a ny rational trier of fact could have found beyond a reasonable doubt that Morales knowingly and voluntarily agreed with Galindo to possess with intent to distribute 100 grams or more of heroin.
See United States v. Chon , 713 F.3d 812, 818 (5th Cir. 2013) (per curiam)

. We

1 We review properly preserved sufficiency of the evidence claims de novo. See Unite d States v. Chon , 713 F.3d 812, 818 (5th Cir. 2013) (per curiam). Nevertheless, we give substantial deference to the jury verdict. See id. Viewing the evidence in the light most favorable to the Government, we only ask “whether any rational trier of fac t could have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted). We review a properly preserved objection concerning an evidentiary ruling for abuse of discretion. United States v. Watkins , 591 F.3d 780, 786 (5th Cir. 2009). However, when counsel fails to properly preserve an objection, we review only for plain error. See United States v. Thompson , 454 F.3d 459, 464 (5th Cir. 2006). Case: 21-50315 Document: 00516287740 Page: 2 Date Filed: 04/20/2022No. 21

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3 therefore decline to reverse the district cou rt based on Morales’s sufficiency
of the evidence argument

. Morales also argues that the district court erred in allowing alleged hearsay testimony concerning the circumstances of his 2009 possession
offense. Although it is debatable whether he properly preserved this objection, we conclude that, even assuming arguendo the hearsay challenge was properly made and that the comments in question were hearsay, he still does not prevail. Morales’s argument fails bec ause t he admission of the testimony in question did not affect Morales’s substantial rights under a harmless error analysis

. 2 See **Fed. R. Crim. P.** 52 (a) (“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.”).

For similar reasons, we decline to reverse based on the Government’s reference to the alleged hearsay in its closing argument. Because defens e counsel failed to object to the Government’s closing, we review for plain

error. See United States v. Oti , 872 F.3d 678, 690 (5th Cir. 2017)

. As discussed above, nothing suggests that the alleged hearsay affected Morales’s “substantial rights,” so he f ail s the third prong of plain error review. See id. ; see also United States v. Pena , 720 F.3d 561, 574 n.9 (5th Cir. 2013) (“Although the government assessed the impact of the court’s condition under a
harmless

- error standard, its arguments are still germ ane to our plain

- error analysis.”).

2 It is notable that Morales is not raising a con stitutional error, which , to be harmless, require s a finding “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Mitchell v. Esparza , 540 U. S. 12, 17

– 18 (2003) (per curiam) (quotation omitted). Case: 21-50315 Document: 00516287740 Page: 3 Date Filed: 04/20/2022No. 21

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4 For the foregoing reasons, we **AFFIRM** Morales’s conviction and

sentence. Case: 21-50315 Document: 00516287740 Page: 4 Date Filed: 04/20/2022