* 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this opinion should not be published and is not precedent except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 8, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41016

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO GARCIA RAMIREZ,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:03-CR-89-1 

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

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Alejandro Garcia Ramirez appeals from a jury-trial

conviction for conspiracy to possess with intent to distribute

and possession with intent to distribute over 50 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1),(b)(1)(C) and 18

U.S.C. § 2.

Possession

Ramirez argues that the evidence is legally insufficient to

support his conviction on the possession and conspiracy counts.
No. 03-41016

-2-

Because he failed to move for a judgment of acquittal with

respect to this charge, the standard of review is limited to

whether the record is “devoid of evidence pointing to guilt.” 

See United States v. Herrera, 313 F.3d 882, 885 (5th Cir.

2002)(en banc). 

The record reflects that Ramirez exhibited some hesitation

when asked by a customs inspector about his destination, that he

demonstrated no signs of nervousness when his pickup truck was

being examined, that he had owned the truck for two months prior

to the arrest, and that the truck contained numerous alterations,

some of which were obviously recent and related to the tank in

which marijuana was found. See United States v. Moreno, 185 F.3d

465, 472 n.3 (5th Cir. 1999). Accordingly, the record is not 

“devoid of evidence pointing to guilt.” See Herrera, 313 F.3d at

885.

Conspiracy

Ramirez also argues that the evidence is insufficient to

support his conviction on the conspiracy charge. Because he

moved for a judgment of acquittal with respect to this charge at

the close of the evidence, this court reviews his sufficiency

challenge to determine “whether any reasonable trier of fact

could have found that the evidence established the essential

elements of the crime beyond a reasonable doubt.” United States

v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). 
No. 03-41016

-3-

Testimony revealed that the weight of the propane tank

attached to Ramirez’s vehicle that contained the marijuana

required five to six individuals to lift it when the tank was

emptied. Moreover, from the quantity of the drugs (approximately

126 pounds or 57 kilograms) and the street value ($31,500 in

Brownsville to $283,500 in Houston), it is reasonable to infer

that other individuals were involved besides Ramirez. See United

States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir. 2002).

Accordingly, the evidence was sufficient to support his

conspiracy conviction.

Constitutionality of 21 U.S.C. § 841

For the first time on appeal, Ramirez argues that 21 U.S.C.

§§ 841(a) and (b) are facially unconstitutional under Apprendi,

in that drug quantity is an element of the offense that must be

presented to the trier of fact. Ramirez acknowledges that relief

on this argument is foreclosed by United States v. Slaughter, 238

F.3d 580 (5th Cir. 2000), but attempts to raise the issue to

preserve it for Supreme Court review. 

Because Ramirez’s claim was not raised in the district

court, it is waived. Moreover, this Court has specifically

rejected the argument that Apprendi rendered the sentencing

provisions of § 841(a) and (b), facially unconstitutional. See

Slaughter, 238 F.3d at 582. Thus, as Ramirez acknowledges,

Slaughter applies and forecloses his argument. Accordingly, the

judgment of the district court is AFFIRMED.
No. 03-41016

-4-