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this opinion should not be published and is not precedent except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

November 24, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41632

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WAYNE PAUL BURTON; ROMEO BOTELLO, JR.,

Defendants-Appellants.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:03-CR-258-1

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

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Wayne Paul Burton appeals his jury convictions for

possession with intent to distribute 570 kilograms of marijuana

and conspiracy to possess with intent to distribute more than

1000 kilograms of marijuana. Romeo Botello, Jr., appeals his

jury convictions for possession with intent to distribute 828

kilograms of marijuana and conspiracy to possess with intent to

distribute more than 1000 kilograms of marijuana. They argue

that the evidence is insufficient to support their conspiracy

convictions and that the evidence is not sufficient to establish
No. 03-41632

-2-

that their relevant conduct included more than 1000 kilograms of

marijuana. Botello also argues that his conspiracy conviction

violates due process because it is not supported by a reliable

evidentiary basis; this argument in effect restates his challenge

to the sufficiency of the evidence. A review of the evidence in

the record indicates that a rational trier of fact could have

found beyond a reasonable doubt that the evidence established

that Burton and Botello entered into an agreement with others to

transport marijuana, that they knew about the agreement, and that

they voluntarily participated in this agreement. See United

States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996). The

inconsistencies in Burton’s statement to police and the false

bill of lading indicate that Burton knew the marijuana was hidden

in the tractor-trailer. See United States v. Ortega Reyna, 148

F.3d 540, 544 (5th Cir. 1998). The evidence also established

that it was reasonably foreseeable to Burton and Botello that the

conspiracy involved the transportation of more than 1000

kilograms of marijuana. See U.S.S.G. 1B1.3(a)(1); United States

v. Vital, 68 F.3d 114, 117 (5th Cir. 1995).

Burton also argues that his trial counsel was ineffective in

that: (1) he was not Burton’s counsel of choice; (2) he failed to

investigate any of the Government’s witnesses; (3) he failed to

call a key defense witness; (4) he failed to file a motion to

suppress challenging the stop of his vehicle on the day of his

arrest. Because Burton did not present these claims to the
No. 03-41632

-3-

district court, the record is not sufficiently developed for us

to review the claims at this time and we decline to consider them

without prejudice to Burton’s right to raise them in a subsequent

collateral proceeding. See United States v. Valuck, 286 F.3d

221, 229 (5th Cir.), cert. denied, 537 U.S. 1000 (2002).

AFFIRMED.