* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 25 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. EVANGELIO ALVAREZ, also known as Evangelio Alvarez-Iabanez, also known as Ricardo Vega, also known as Mimon, and also known as Rich,

Defendant - Appellant. No. 02-2326 (D.C. No. CR-00-1462 LH) (D. New Mexico)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, McKAY and McCONNELL , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument.-2-

Mr. Alvarez and his co-defendants were charged by i ndictment filed in the United States District Court for the District of Ne w Mexico with one count of Conspiracy to Possess with Intent to Distribute 50 Grams and More of a Mixture Containing Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), 21 U.S.C. § 846, and 18 U.S.C. § 2 (Count I), and one count of Possession with Intent to Distribute More Than 5 Grams of a Mixture Containing Cocaine Base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2 (Count IV). Appellant was the only defendant that went to verdi ct; the rest of the defendants pled guilty. At the close of the Government’s case , Appellant moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(a). The court denied the motion. The jury convicted Appellant of Count I. The jury was unable to reach a unanimous verdict on Count IV and, after polling th e jury, the court declared a mistrial as to Count IV. Appellant was sentenced t o 151 months in prison. On appeal, Appellant claims that the district courterred in denying his motion for judgment of acquittal because there was insufficient evidence to convict him of conspiracy to possess with intent to distribute cocaine base. We review de novo the district court’s denial of a Rule 29 motion fo r judgment of acquittal viewing the evidence “in the light most f avorable to the government.” United States v. Almaraz , 306 F.3d 1031, 1040 (10th Cir. 2002); United Stat es v. Rangel-Arreola , 991 F.2d 1519, 1521 (10th Cir. 1993). “In evaluating the-3-

evidence under this standard, the court will not qu estion the jury’s credibility determinations or its conclusions about the weight of the evidence.” United States v. Lazcano-Villalobos , 175 F.3d 838, 843 (10th Cir. 1999). Our review of the evidence reflected in the record and the briefs, when viewed in the light most favorable to the Governmen t, is sufficient to support the jury’s verdict. We will not provide a detailed rec reation of all the evidence against Appellant which is found in the record. Ho wever, we do note that three separate witnesses testified about Appellant’s invo lvement in the drug conspiracy. One co-defendant testified that he sold crack for Appellant. Another codefendant testified that he pooled money with Appel lant to get a better price on the cocaine power necessary to make crack. A confi dential informant testified that he bought crack from Appellant at another co-d efendant’s house. We “will not question the jury’s credibility determinations or its conclusions about the weight of the evidence.” Id. Appellant’s assertion that his conviction should be overturned because of the alleged inconsistency in the verdict is also wi thout merit. First, the verdict is not inconsistent. Count IV dealt with a single sub stantive charge. We agree with the Government’s assertion that “[w]hile the jury m ay have found that Alvarez did not participate in the hand-to-hand sale, it could also have concluded that he did participate in other criminal acts as part of the c onspiracy.” Aple. Resp. Br. at-4-

19, n.6. Second, “[c]onsistency in the verdict is not necessary.” Dunn v. United States , 284 U.S. 390, 393 (1932); United States v. Powell , 469 U.S. 57, 69 (1984) (jury verdicts may not be reviewed on the basis of inconsistency). AFFIRMED. Entered for the Court Monroe G. McKay Circuit Judge