IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40881

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JAVIER MARTINEZ-SOSA,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:10-CR-193-1

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Javier Martinez-Sosa appeals his jury-trial conviction for one count, each,

of: possession, with intent to distribute, more than 100 kilograms of marijuana;

and conspiracy to possess, with intent to distribute, more than 100 kilograms of

marijuana. Martinez contends there was insufficient evidence to sustain a

conviction for both counts.

Martinez moved for a judgment of acquittal at the close of the

Government’s case-in-chief, but failed to renew that motion at the close of all

United States Court of Appeals

Fifth Circuit

F I L E D

May 20, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-40881

evidence. Therefore, we review for a “manifest miscarriage of justice”, i.e.,

whether the record is devoid of evidence of guilt or whether the evidence on an

offense’s key element is so tenuous that a conviction would shock the conscience.

United States v. Miller, 576 F.3d 528, 529-30 & n.2 (5th Cir.) (citations omitted),

cert. denied, 130 S. Ct. 652 (2009); United States v. Rodriguez-Martinez, 480 F.3d

303, 307 (5th Cir. 2007). Martinez fails to show such manifest miscarriage of

justice for each conviction.

For the possession conviction, Martinez contends the evidence was

insufficient for the jury to conclude that he knew the bundles he threw over the

border fence between the United States and Mexico contained marijuana. This

contention, however, is belied by the record. At trial, Martinez testified that he

recognized the bundles as ones that contained marijuana. There was additional

testimony that the bundles: were hidden before they were thrown over the

fence; were approximately 60-70 pounds; were wrapped alike; had carrying

straps; and smelled like marijuana.

For the conspiracy conviction, Martinez’ concerted actions with other

members of the conspiracy rose to more than mere association or presence in an

unsavory atmosphere. See United States v. Garcia Abrego, 141 F.3d 142, 155

(5th Cir. 1998). The evidence showed that Martinez: joined the group carrying

the bundles; waited with the group for approximately 20-30 minutes; walked

with them as they carried the bundles and a ladder; helped form a human chain

enabling them to move the bundles across the border fence; and had markings

on his shoulders indicating he carried a bundle. Thus, his active participation

in moving with the group and/or carrying the bundles suggests he was more

than an innocent bystander. Moreover, the marijuana’s high value indicates

Martinez was not an unwitting participant, because “a prudent smuggler is not

likely to suffer the presence of unaffiliated bystanders” with so much at stake.

United States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985); see also

United States v. Martinez-Moncivais, 14 F.3d 1030, 1035 (5th Cir. 1994) (jury

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could conclude smuggler would not entrust unknowing driver with millions of

dollars in drugs). Furthermore, the court specifically instructed jurors that they

were not to convict Martinez based solely on his presence at the scene.

AFFIRMED.

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