IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31198

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIRANDA SIERRA, also known as Mandi,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 5:09-CR-202-1

Before WIENER, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

Miranda Sierra was convicted of one count of conspiracy to possess with

intent to distribute methamphetamine and possession with intent to distribute

methamphetamine. She timely appeals her conviction, and we AFFIRM. 

 FACTS AND PROCEEDINGS

Sierra was charged in an indictment with one count of conspiracy to

possess with intent to distribute fifty grams or more of methamphetamine, in

violation of 21 U.S.C. §§ 841(a)(1) and 846, and two counts of possession with

United States Court of Appeals

Fifth Circuit

F I L E D

August 4, 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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intent to distribute five grams and fifty grams of methamphetamine,

respectively, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The

indictment alleged that Sierra conspired with her co-defendants, Susan

Underwood and Jimmie Underwood (“Susan” and “Jimmie” respectively, and

“the Underwoods” collectively), and “other persons known and unknown to the

grand jury.” The Underwoods pleaded guilty, but Sierra proceeded to trial. A

jury convicted Sierra on all three counts. 

On appeal, Sierra raises three arguments: (1) the evidencewas insufficient

to support her convictions; (2) the district court plainly erred in admitting

evidence regarding the drug ledgers found in her car; and (3) the district court

plainly erred in admitting photographs depicting a syringe recovered from her

car.

DISCUSSION

I. Sufficiency of the Evidence 

Sierra contends that the evidence was insufficient to show that she

conspired to possess with intent to distribute fifty grams or more of

methamphetamine or that she possessed methamphetamine with intent to

distribute it on the dates charged in the indictment. 

A. Standard of Review

After the government presented its case in chief, Sierra moved for a

judgment of acquittal under Federal Rule of Criminal Procedure 29, but she

failed to renew that motion after presenting her defense. “Where a defendant

fails to renew his motion at the close of all the evidence, after defense evidence

has been presented, he waives his objection to the earlier denial of his motion.

In this circumstance, appellate review is limited to determining whether there

was a manifest miscarriage of justice, that is, whether the record is devoid of

evidence pointing to guilt.” United States v. Daniel, 957 F.2d 162, 164 (5th Cir.

1992) (internal citations and quotation marks omitted). 

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B. Evidence of a Conspiracy

To prove a conspiracy to possess with intent to distribute

methamphetamine, the government must show: (1) the existence of an

agreement between two or more persons to possess with intent to distribute

methamphetamine; (2) that the defendant knew of the conspiracy and intended

to join it; and (3) that the defendant participated in the conspiracy. United States

v. Mitchell, 484 F.3d 762, 768 (5th Cir. 2007). “Direct evidence of a conspiracy

is unnecessary; each element may be inferred from circumstantial evidence,” and

an “agreement may be inferred from a concert of action.” Id. at 768-69 (internal

citations and quotation marks omitted). 

Sierra argues that, at most, the government demonstrated that she

associated with individuals involved in a conspiracy, but that there is no

evidence that she knowingly and voluntarily joined the conspiracy. We conclude

that the record is far from devoid of evidence demonstrating that Sierra

conspired with her co-defendants. The government introduced evidence of

continued cooperation between Sierra and the Underwoods. Sierra sold the

Underwoods substantial amounts of drugs on several occasions over an extended

period of time, and, in turn, the Underwoods resold the drugs for profit. Susan

testified that Sierra was the Underwoods’ sole drug supplier from August 2008

through July 2009. The Underwoods and Sierra coordinated their drug sales in 1

advance; to conduct drug purchases from Sierra, either the Underwoods would

travel to Dallas, Georgia to meet Sierra or Sierra would travel to Bossier City,

Sierra asserts that the primary evidence supporting her conspiracy conviction is 1

Susan Underwood’s testimony, which Sierra asserts is unreliable due to Susan’s history of

drug use and motive to lie. Uncorroborated testimony from a co-conspirator, including one who

has agreed to testify in exchange for leniency, may be constitutionally sufficient evidence to

convict, provided the testimony is not factually insubstantial or incredible. United States v.

Westbrook, 119 F.3d 1176, 1190 (5th Cir. 1997). Sierra has not demonstrated that Susan’s

testimony is factually insubstantial or incredible.

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Louisiana to meet them. After Sierra was detained by police on May 26, Sierra

and the Underwoods arranged an elaborate means of repayment to avoid police

attention. For several months, the Underwoods wired money to Sierra via WalMart MoneyGrams, sometimes addressing the MoneyGram to Sierra’s son

instead of Sierra, dividing a larger payment into two smaller payments, and

using a false address to avoid detection. 

In July 2009, Susan traveled to Georgia to meet Sierra and her son. Once

there, the three acquired some methamphetamine, and Sierra and her son

concealed the drugs inside a tire. Sierra, her son, and Susan then traveled to

Bossier City to deliver the tire filled with methamphetamine to Jimmie. After

police uncovered a substantial amount of cash in Sierra’s possession, Susan

executed an affidavit in which she falsely stated that she had given Sierra

$1000.

Moreover, Sierra routinely fronted methamphetamine to the Underwoods.

Fronting is “strong evidence of membership in a conspiracy because it indicates

a strong level of trust and an ongoing, mutually dependent relationship.” United

States v. Posada-Rios, 158 F.3d 832, 860 (5th Cir. 1998) (internal quotation

marks omitted). The record is not devoid of evidence supporting Sierra’s

conspiracy conviction, and she has not demonstrated “a manifest miscarriage of

justice.” Daniel, 957 F.2d at 164. 

C. Evidence of Possession 

Sierra contends that her convictions for possession with intent to

distribute on May 12 and May 26 are unsupported by the evidence. To establish

possession of methamphetamine with intent to distribute, the government must

prove that the defendant (1) knowingly (2) possessed methamphetamine (3) with

intent to distribute it. United States v. Medina, 161 F.3d 867, 873 (5th Cir.

1998). 

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Susan testified that the Underwoods purchased drugs exclusively from

Sierra during the relevant period. Susan attested that Sierra traveled to the

Underwood residence in Bossier City to sell methamphetamine to the

Underwoods on two separate occasions in May, although she did not recall the

exact dates. Twice in May, once on May 12 and once on May 26, Jimmie

contacted an undercover agent and relayed to the agent that he had

methamphetamine available for purchase. From this testimony, the jury could

infer that on or about May 12 and May 26, Sierra traveled to the Underwood

residence with methamphetamine that she intended to sell to the Underwoods,

who in turn sold it to the undercover agent. 

This conclusion is further supported by other evidence in the record. On

May 12, the undercover agent arrived at the Underwood residence to purchase

methamphetamine. Outside the residence, he observed a car with Georgia

license plates and stated that a young man with red hair and “spacer earrings”

answered the door. This person matches the description of Sierra’s son, who

frequently accompanied her on her drug dealing trips to Bossier City. There was

no evidence that Sierra’s son had ever traveled alone to sell methamphetamine

to the Underwoods.

Moreover, on May 26, when the agent arrived at the Underwood residence,

a car registered to Sierra was parked in front of the house and the agent

observed Sierra inside the house. The undercover agent paid the Underwoods

for the methamphetamine that he purchased using $4000 in marked bills. After

Sierra left the Underwood residence on the evening of May 26, she was detained

by police for speeding. Sierra consented to a search of her car, and police found

$7886 in cash in her purse, among other items. Nearly $4000 of the money

discovered in Sierra’s car was later identified as the same marked money used

by the undercover agent to purchase methamphetamine from the Underwoods

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on May 26. The record is not devoid of evidence supporting Sierra’s two

convictions for possession of methamphetamine with intent to distribute. 

II. Evidence of Drug Ledgers 

Sierra contends that under Federal Rule of Evidence 404(b), the trial court

clearly erred in permitting the government to introduce into evidence two

notebooks found by police in Sierra’s car and expert testimony by a federal agent

that these notebooks were “drug ledgers” used by Sierra to record sales of illegal

drugs. According to Sierra, this evidence was extrinsic to the charged offenses

and constituted “improper evidence of alleged ‘other crimes’ [introduced by the

government] for the purpose of proving that Sierra acted in conformity

therewith.” 

As Sierra did not raise this argument in the district court, we review it for

plain error. FED. R. EVID. 103; United States v. John, 597 F.3d 263, 282 (5th Cir.

2010). Plain error review has four prongs: (1) there was an error; (2) the error is

clear or obvious; (3) the error affected the defendant’s substantial rights; and (4)

a court may exercise its discretion to correct the error “only if the error seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

John, 597 F.3d at 284 n.91 (alteration in original) (internal quotation marks

omitted).

Rule 404(b) precludes the admission of evidence “of other crimes, wrongs,

or acts . . . to prove the character of a person in order to show action in

conformity therewith.” We note, however, that Rule 404(b) only limits the

admissibility of extrinsic evidence, not intrinsic evidence of the crime charged.

See United States v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007); see also United

States v. Garcia, 27 F.3d 1009, 1014 (5th Cir. 1994) (“The evidence admitted was

not extrinsic to the offenses charged, thus consideration of its admissibility

pursuant to Rule 404(b) is unnecessary.”). The admission of evidence tending to

prove the crime charged is not precluded by Rule 404(b) simply because it also

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implicates a defendant in other crimes. See, e.g., United States v. Lamp, 779 F.2d

1088, 1095 (5th Cir. 1986). 

Even assuming, however, that the district court plainly erred in admitting

the drug ledgers, Sierra has not shown that the error affected her substantial

rights. “To meet this standard the proponent of the error must demonstrate a

probability ‘sufficient to undermine confidence in the outcome.’” United States

v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004)). Considering the extent of the other evidence

presented against Sierra, she has not demonstrated that the outcome of her trial

would likely have been different had the drug ledgers not been admitted. See

United States v. Ricardo, 472 F.3d 277, 286 (5th Cir. 2006) (defendants’

substantial rights not affected where, “in light of the substantial amount of

evidence . . . presented against [them], . . . the outcome of the trial would not

have been different”). Because the alleged error did not affect Sierra’s

substantial rights, she is not entitled to relief on plain error review. 

III. Photographs of Syringe 

Sierra asserts that the district court plainly erred in admitting

photographs depicting a syringe discovered by police in Sierra’s car on May 26. 

Although the government had agreed not to introduce testimony regarding the

syringe, it nevertheless introduced into evidence two photographs depicting the

syringe: one photograph showing both the marked money and the syringe in

Sierra’s purse and a second photograph showing all of the items recovered from

Sierra’s car, including the money and the syringe. Neither party introduced any

testimony regarding the syringe. 

Since Sierra failed to object to the photographs in the trial court, the court

reviews this argument for plain error as well. FED. R. EVID. 103; John, 597 F.3d

at 284 n.91. Sierra contends that the photographs were unduly prejudicial under

Federal Rule of Evidence 403. As with the drug ledgers, even if we assume that

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the admission of these photographs was clearly erroneous, Sierra is still not

entitled to relief under plain error review because she has not shown that the

admission of this evidence affected her substantial rights. After a review of the

record, we are satisfied that the introduction of these photographs does not

undermine confidence in the jury’s verdict. “Because the prosecution did not

emphasize [this evidence] in any way during trial and because the evidence

against [Sierra] was strong, the jury likely disregarded [this evidence], meaning

that the outcome of the trial would not have been different but for this error.”

Ricardo, 472 F.3d at 285. Sierra is therefore not entitled to relief. 

CONCLUSION

For the reasons stated above, we AFFIRM Sierra’s convictions. 

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