IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60047

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LEE EARL BROOKS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:11-CR-67-1

Before KING, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Lee Earl Brooks appeals his jury trial conviction for conspiracy to possess 

with intent to distribute 100 kilograms or more of marijuana (Count 1), 

attempted possession with intent to distribute 50 kilograms of marijuana

(Count 2), possession with intent to distribute methamphetamine (Count 3), 

and carrying a firearm during and in relation to a drug trafficking crime

(Count 4). Brooks was sentenced to a total of 211 months in prison. 

* 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 19, 2013

Lyle W. Cayce

Clerk

 

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No. 13-60047

First, Brooks asserts that he was denied the effective assistance of 

counsel. “The general rule in this circuit is that a claim for ineffective 

assistance of counsel cannot be resolved on direct appeal when the claim has 

not been raised before the district court since no opportunity existed to develop 

the record on the merits of the allegations.” United States v. Cantwell, 470 

F.3d 1087, 1091 (5th Cir. 2006) (internal citation and quotation marks 

omitted). We decline to address Brooks’s allegations of ineffective assistance 

of counsel because the record is not sufficiently developed to consider the 

claims.

Next, Brooks argues that the evidence was not sufficient to allow the jury 

to find him guilty of all four counts of the indictment and that the district court 

erred in denying his motion for judgment of acquittal. Ordinarily, in assessing 

the sufficiency of the evidence, we determine whether after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable 

doubt, and our review is de novo. See United States v. Lopez-Moreno, 420 F.3d 

420, 437-438 (5th Cir. 2005); United States v. McDowell, 498 F.3d 308, 312 (5th 

Cir. 2007). However, Brooks failed to properly preserve his challenge to the 

sufficiency of the evidence as to Counts 1 and 2. Therefore, we review Brooks’s

challenge to the sufficiency of the evidence as to those counts to determine 

whether there was a manifest miscarriage of justice. United States v. Delgado, 

672 F.3d 320, 332 (5th Cir.) (en banc), cert. denied, 133 S. Ct. 525 (2012). A 

manifest miscarriage of justice “occurs only where the record is devoid of 

evidence pointing to guilt or contains evidence on a key element of the offense 

that is so tenuous that a conviction would be shocking.” United States v. 

Rodriguez-Martinez, 480 F.3d 303, 307 (5th Cir. 2007) (internal quotation 

marks, brackets, and citation omitted).

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A review of the record indicates that there was sufficient evidence of guilt

as to Counts 1 and 2. The testimony of Brooks’s coconspirators was sufficient 

to support his conviction on those counts. Therefore, Brooks has not shown 

that his conviction resulted in a manifest miscarriage of justice. See Delgado, 

672 F.3d at 332. 

Similarly, we conclude that the evidence was sufficient as to Counts 3 

and 4. Given that the methamphetamine was found in one bathrobe pocket 

and multiple packages of marijuana were found in the other pocket and in close 

proximity to currency, drug paraphernalia, and a gun, it was reasonable for 

the jury to infer Brooks’s intent to distribute. See United States v. Kates, 174 

F.3d 580, 582 (5th Cir. 1999). Further, and contrary to Brooks’s argument, the 

amount of methamphetamine found, 3.9 grams, was sufficient for the jury to 

infer intent to distribute. See United States v. Cockrell, 587 F.3d 674, 681 (5th 

Cir. 2009).

With regard to Count 4, the trial evidence showed that Brooks was 

stopped in a rental vehicle, and after a search of the vehicle, Brooks was found 

to be in possession of a nine millimeter pistol and marijuana that had been 

packaged for sale. The handgun was readily accessible to Brooks, having been 

found on the driver’s floorboard. Given the foregoing, a reasonable juror could 

have found that the firearm was available to provide protection to Brooks in 

connection with his drug-trafficking conduct. See United States v. Smith, 481 

F.3d 259, 264 (5th Cir. 2007).

By failing to address the district court’s ruling on prejudice and its 

reasons for admitting evidence of other firearms possessed by Brooks during 

different drug transactions encompassed by the conspiracy, he has not shown 

that the district court abused its discretion in admitting evidence of the other 

firearms. See United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011). 

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Likewise, we conclude that the district court did not plainly err in responding 

to the jury’s questions. See United States v. Stevens, 38 F.3d 167, 170 (5th Cir. 

1994); United States v. Rogers, 126 F.3d 655, 660 (5th Cir. 1997).

Brooks has abandoned any challenge to the district court’s drug quantity 

calculation by failing to adequately brief the issue; Brooks does not identify 

specific error in the district court’s calculations, which were extensive and 

thorough. Nor does Brooks identify error in the district court’s determination 

that his role in the offense was that of a manager or supervisor. See 

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 

1987).

Lastly, we reject, as without merit, Brooks’s argument that his sentence 

reflects an unwarranted disparity between him and his codefendants. 

See 18 U.S.C. § 3553(a)(6) (indicating that a district court must consider “the 

need to avoid unwarranted sentence disparities among defendants with 

similar records who have been found guilty of similar conduct”). Brooks is not 

similarly situated to his codefendants, each of whom pleaded guilty. 

See United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006). 

AFFIRMED. 

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