*

 Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 94-50197

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,,

versus

ARMANDO MELENDEZ,

Defendant-Appellant.

 

Appeal from the United States District Court for the

Western District of Texas

(92-CR-133-1)

 

January 25, 1996

Before GARWOOD, SMITH and DENNIS, Circuit Judges.*

PER CURIAM:

Defendant-appellant Armando Melendez (Melendez) was found

guilty of conspiring to import a quantity of more than one hundred

kilograms of marihuana in violation of 21 U.S.C. §§ 952(a),

960(a)(1) and 963. On appeal, this Court remanded appellant’s

conviction to the district court to determine whether the

presentence investigation reports (PSRs) of various government

witnesses contained Brady or Giglio material and, if so, whether a
2

new trial was required. In addition, this Court vacated Melendez’s

sentence and remanded to the district court for resentencing.

Melendez appeals the district court’s judgment and resentencing.

We affirm.

Facts and Proceedings Below

Melendez was charged together with fourteen other named

defendants pursuant to a superseding indictment filed on May 6,

1992, with numerous crimes relating to a large-scale marihuana

importing operation spanning seven years (1985-1992). The district

court granted a severance to Melendez and his co-defendant Octavio

Carreon, and the two were tried together for: (1) conspiring to

import a quantity of more than one hundred kilograms of marihuana

in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 963; (2)

conspiring to possess more than one hundred kilograms of marihuana

with intent to distribute, in violation of 21 U.S.C. §841(a)(1);

and (3) bribing a public official in violation of 18 U.S.C. §

201(b)(1).

Based largely on the testimony of the defendants’ alleged coconspirators, the jury found Melendez guilty of conspiring to

import marihuana, but acquitted him on the other two counts. On

appeal, this Court remanded Melendez’s conviction to the district

court to determine by “in camera inspection” whether the PSRs

prepared for these co-conspirators——who had served as government

witnesses against Melendez——contained exculpatory or impeachment

information under Brady or Giglio. United States v. Carreon, 11

F.3d 1225, 1238 (5th Cir. Jan. 5, 1994). In addition, this Court
1

 After reviewing the evidence regarding the constituent amounts

of marihuana attributable to Melendez, the district court reduced

the total amount of marihuana (from the district court’s original

finding) by approximately 9,000 kilograms. Nevertheless, even

after making this reduction in the total amount of marihuana

attributable to Melendez, this revised total still exceeded 100,000

kilograms; therefore, Melendez’s original base offense level of

forty remained the same. Furthermore, Melendez’s two-level upward

adjustment for his role in the offense, as well as his criminal

history category, obviously remained unchanged as well.

3

vacated Melendez’s sentence and remanded to the district court with

instructions that it make findings in support of its resentencing

of Melendez. Id. at 1235-38.

On remand, the district court reviewed the PSRs of the

cooperating co-conspirators and concluded that they contained no

Brady or Giglio material; alternatively, the court observed that,

“[I]f any such information is contained in any one or more of these

reports, the Court finds that it could not have affected the

outcome of Melendez’ trial, and that the failure to disclose such

information . . . was harmless error.” April 4, 1994, Order After

Remand at 4, in United States v. Melendez, No. EP-92-CR-133-H

(W.D.Tex. 1994). Consequently, the district court resentenced

Melendez to 360 months’ imprisonment, five years of supervised

release, and a fine of $100,000——the same sentence Melendez

originally received.1

Thereafter, on April 19, 1994, this Court issued a

Supplemental Opinion in which we observed:

“The district court found that [the PSRs at issue]

contained no material Brady or Giglio information. Our

independent review of the same PSRs leads us to the same

conclusion. . . . For the foregoing reasons, Melendez’s

judgment of conviction is AFFIRMED.” United States v.
4

Carreon, No. 92-8682 at 2-3 (5th Cir. April 19, 1994)

(unpublished).

Discussion

This Court’s Supplemental Opinion of April 19, 1994, provides

the law of the case, and Melendez fails to demonstrate that the

present appeal from the resentencing should be permitted insofar as

it relates to his conviction. However, even if the issues raised

by Melendez respecting his conviction on the present appeal had not

already been resolved by the prior January 4 and April 19, 1994,

opinions of this Court, this Court would nevertheless affirm the

district court’s conviction of Melendez, as well as his

resentencing on remand.

Melendez raises several contentions on appeal. First, he

contends that the district court erred in denying his postconviction motion for judgment of acquittal because the evidence

against him was insufficient to support his conviction.

Principally, Melendez maintains that his conviction for conspiring

to import marihuana and his acquittal for knowingly possessing

marihuana with the intent to distribute it constitute “fatally

inconsistent” jury verdicts. Considering the distinct elements of

these two offenses, it is not at all clear that these verdicts are

inconsistent; however, even if they were “truly inconsistent”, this

Court has observed that:

“. . . The most that can be said . . . is that the

verdict shows that either in the acquittal or the

conviction the jury did not speak their real conclusions,

but that does not show that they were not convinced of

the defendant’s guilt.” United States v. Scurlock, 52

F.3d 531, 537 (5th Cir. 1995) (quoting United States v.

Powell, 105 S.Ct. 471, 475 (1984)).
2

 In his only other contention that the evidence against him was

insufficient, Melendez challenges the credibility of the

government’s witnesses——an assessment clearly within the sole

province of the jury.

3

 

The “first” (April 11, 1991) PSR was prepared in connection with

Aragon’s “first” sentencing by the district court for his

participation in the drug distribution operation. Aragon’s 1991

conviction was subsequently appealed and reversed, and Aragon was

granted a new trial. Before he could be retried, Aragon pleaded

guilty; the “second” (September 28, 1992) PSR was prepared in

connection with the district court’s sentencing pursuant to this

plea. For convenience, these PSRs will be referred to as Aragon’s

“first” and “second” PSRs.

5

Therefore, even where the verdicts are truly inconsistent, the

jury’s decision to acquit on one of the counts does not require

reversal of the defendant’s conviction on the other count. Id. at

538.2

In his second argument on appeal, Melendez contends that the

district court erred by failing to inspect in camera the PSR

prepared on April 11, 1991, for Charles Aragon (Aragon), an

important government witness, in contravention of this Court’s

instructions on remand. Melendez points out that the PSR relating

to Aragon actually inspected in camera by the district court was a

PSR prepared on September 28, 1992.3 Based on this, Melendez

contends that the district court’s inspection of the government

witnesses’ PSRs——ordered by this Court——was incomplete; he argues

that, in conducting an inspection for exculpatory or impeachment

information, the first PSR would be particularly insightful as

Aragon was allegedly already cooperating with the government at the

time the first PSR was prepared. 
4

 During oral argument on the present appeal, the government

informed this Court of Aragon’s decision not to contribute

anything——potentially exculpatory for Melendez or otherwise——to this

first PSR. At that time, counsel for Melendez expressed a

willingness to allow this Court to examine the April 11, 1991, PSR

in order to determine whether its contents justified remand to the

district court for a thorough in camera review in light of Brady

and Giglio.

6

However, on May 3, 1995, the government——by unopposed motion——

supplemented the record in this case by filing a copy of Aragon’s

first PSR. There is no dispute that the PSR so furnished by the

government is the same (April 11, 1991) PSR that Melendez has put

at issue. It is likewise clear that Aragon contributed nothing to

this PSR that would implicate Brady or Giglio. In fact, “[o]n the

advice of counsel, Aragon did not provide any statements to the

probation officer regarding his role in the offense.” April 11,

1991, Presentence Report at ¶ 56, in United States v. Aragon, No.

EP-90-CR-388B (W.D.Tex. 1991)(emphasis added).4 Therefore, we find

that it would be a waste of time and resources to remand this case

to the district court in order for that court to inspect this first

PSR in camera for Brady and Giglio information contributed by

Aragon.

In a footnote in his brief, Melendez makes a passing reference

relating to the district court’s failure to inspect in camera any

PSR prepared in connection with the sentencing of government

witness Jose Guzman (Guzman). In its April 4, 1994, Order After

Remand, supra, the district court asserted that it had been unable

to uncover any information that Guzman had ever been convicted in

either Texas or New Mexico. Melendez’s footnote asserts that
5

 The probation officer recommended that Melendez’s offense

conduct involved a total of approximately 131,353 kilograms of

marihuana, and the district court accepted this recommended finding

when it originally sentenced Melendez following his trial in

7

Guzman was convicted in the United States District Court for the

District of New Mexico of drug trafficking offenses. Although

Melendez fails to provide a cause number for, or the date of, this

alleged conviction, he notes that Guzman responded to questioning

under oath at Melendez’s trial that he had been convicted of a

“marihuana offense” in 1990. March 15, 1995, Corrected Initial

Brief of Appellant at 26 n.15, in United States v. Melendez, No.

94-50197. We need not reach the issue of whether the district

court erred in failing to locate and inspect this missing PSR,

however, as counsel for Melendez——in oral argument on the present

appeal——in substance conceded that this PSR was of little

consequence because Guzman was not cooperating with the government

at the time this PSR would have been prepared. Furthermore, there

is nothing to suggest that Guzman’s purported 1990 conviction for

drug trafficking was connected to the drug operation underlying

Melendez’s present conviction.

In his final argument, Melendez contends that the district

court erred in its determination of the quantity of marihuana

attributable to him for sentencing purposes. This argument is

meritless, however, as it is clear that the district court not only

considered Melendez’s specific objections on this issue, but

actually reduced the amount of marihuana originally attributed to

Melendez based on the probation officer’s recommendation.5 There
October 1992. On remand, the district court excluded certain

quantities of marihuana to which Melendez had objected, reducing

the total amount by more than 9,000 kilograms.

8

is likewise no merit to Melendez’s suggestion that the district

court erred by approximating certain of the constituent amounts of

marihuana attributable to him over the course of this conspiracy.

The United States Sentencing Guidelines recognize that

approximation is permissible “[w]here there is no drug seizure . .

. .” U.S.S.G. § 2D1.1 comment. (n.12). In the present case, in

which certain evidence of the constituent amounts of drugs involved

over the course of this lengthy conspiracy was necessarily derived

from the testimony of eyewitnesses——and not from a recovery of the

drugs involved——such approximation was unavoidable. We conclude

that the district court’s findings are sufficient and that it did

not err in determining the total quantity of drugs attributable to

Melendez for sentencing purposes.

Conclusion

Melendez’s judgment of conviction and sentence is

AFFIRMED.