* Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

.

R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 30, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-10819

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

OMAR MENDOZA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:03-CR-47-19

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

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM: *

Omar Mendoza appeals his convictions for conspiracy to possess

with intent to distribute 500 grams or more of methamphetamine and

for being a felon in possession of a firearm. Mendoza moved to

suppress the evidence discovered during the search of his

residen ce. Following a suppression hearing, the district court

denied the motion, finding that the police officers and the judge

issuing the warrant acted in good faith and that the warrant was

supported by probable cause. Mendoza argues that this was error.No. 03-10819

-2-

In reviewing the denial of a motion to suppress evidence

discovered pursuant to a search warrant, a court first determines

whether the good-faith exception to the exclusionary rule announced

in United States v . Leon , 468 U.S. 897 (1984), applies. U nited

States v. Cherna

, 184 F.3d 403, 407 (5th Cir. 1999). The goodfaith exception applies only where the af fidavit supporting the

warrant “establish[es] a nexus between the house to be searched and

the evidence sought.” U nited States v. Broussard

, 80 F.3d 1025,

1034 (5th Cir. 1996).

Mendoza raises two arguments to conclude that the good-faith

exception does not apply. He first argues that the affidavit was

so lacking in indicia of probable cause as to render belief in its

existence entirely unreasonable. See Cherna , 184 F.3d at 407-08.

This argument fails. In U nited States v. Green

, 634 F.2d 222, 226

(5th Cir. 1981), this Court stated:

The justification for allowing a search of a person’s

residence when that person is suspected o f criminal

activity is the common-sense realization that one tends

to conceal fruits and instrumentalities of a crime in a

place to which easy access may be had and in which

privacy is nevertheless maintained. In normal

situations, few places are more convenient than one’s

residence for use in planning criminal activities and

hiding fruits of a crime.

Here, the affidavit contains specific assertions that (1) Mendoza

was distributing marijuana, (2) the police corrobor ated this

information through a credible source, and (3) 602 South Pittsburgh

was under the control of Mendoza. Under G reen

, the affidavitNo. 03-10819

-3-

estab lished the necessary nexus between 602 South Pittsburgh and

the contraband.

Mendoza’s second argument is that the magistrat e judge

abandoned his judicial role in issuing the warrant. S ee Cherna

,

184 F.3d at 407-08. Mendoza speculates that the judge did not give

the warrant sufficient consideration because it was presented late

at night. The record refutes this speculation: Officer Redden

testified that the judge questioned him specifically regarding the

source of the information contained in the affidavit. Mendoza has

not shown that Judge Broad abandoned his judicial role. U nited

States v. Broussard , 80 F.3d 1025, 1035 n.6 (5th Cir. 1996). The

district court thus did not err in concluding that the good-faith

exception applied in this case. See Cherna , 184 F.3d at 407.

Mendoza next asserts that the evidence was insufficient to

allow the jury to conclude that he participated in the drug

conspiracy to possess with intent to distribute more than 500 grams

of methamphetamine. Because Mendoza failed to move for acquittal

on the basis of insufficient evidence of participation in

the conspiracy, this claim is rev iewed for plain error only.

See United States v. Herrera

, 313 F.3d 882, 884-85 (5th Cir. 2002)

(en banc), cert. denied , 123 S. Ct. 1375 (2003); United States v.

McIntosh , 280 F.3d 479, 483 (5th Cir. 2002).

Mendoza finally contends that he was not part of the larger

conspiracy because he was an independent businessman paying cash

for the narcotics from his suppliers, that he had no stake in theirNo. 03-10819

-4-

enterprise, and that they had no stake in his. Although evidence

of a buyer-seller relationship alone is insufficient to su pport

a conspiracy conviction, evidence indicating that b oth parties

to the sale knew that the drugs were meant for resale is sufficient

to establish a distribution conspiracy between them. U nited States

v. Casel

, 995 F.2d 1299 , 1306 (5th Cir. 1993) . Mendoza concedes

that the Government proved an agreement between Denise and Daniel

Contreras and others to distribute la r ge quantities of

methamphetamine. Mendoza also concedes that the Government

presented the testimony of Denise and Daniel Contreras that he

b ought between 20 and 40 pounds of methamphetamine from th em.

Intent to distribute may be inferred from possession of a large

amount of contraband. U nited States v. Lopez

, 979 F.2d 1024, 1031

(5th Cir. 1992). The evidence presented was sufficient to allow a

jury to find that Mendoza participated in the conspiracy to

distribute methamphetamine.

AFFIRMED.