* 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should not be published and is not precedent except under the limited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

September 14, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11264

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

RODERICK SHEMONE HOWARD, also known as Big Rod

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CR-81-2

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Roderick Shemone Howard appeals his jury trial conviction and sentence

for possessing a firearm in furtherance of a drug trafficking offense, in violation

of 18 U.S.C. § 924(c). Howard was also charged with, and pled guilty to,

conspiring to distribute cocaine and possession with intent to distribute heroin.

Among the several issues raised by Howard in his appeal is his contention

that the evidence introduced at trial was insufficient to show that he possessed

a firearm in furtherance of a drug trafficking offense rather than for purposes
No. 06-11264

2

of protecting his family. Howard concedes that he did not move for a judgment

of acquittal in accordance with Rule 29(c) of the Federal Rules of Criminal

Procedure. The appropriate standard of review is therefore that this court must

restrict its sufficiency review to determining whether Howard’s conviction

resulted in a manifest miscarriage of justice, which results only if (1) the record

is devoid of evidence pointing to guilt, or (2) the evidence on a key element of the

offense is so tenuous that a conviction would be shocking. United States v.

Smith, 203 F.3d 884, 887 (5th Cir. 2000). 

Howard admitted during his trial that he both stored and sold drugs out

of his apartment where two loaded handguns were found by police during the

execution of a warrant for his arrest. He further admitted that he answered the

officers’ knock on his door while holding a loaded 9 mm handgun that he kept

under his mattress. The evidence established that Howard also kept a second,

loaded handgun on a lower shelf in a kitchen cabinet, in close proximity to

heroin, cocaine, and drug paraphenalia found in plain view on his dining table.

See United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000).

Howard has not shown that the record is devoid of evidence pointing to his guilt

on the firearm charge, and he also has not shown that the evidence on a key

element of that charge is so tenuous that a conviction would be shocking.

Therefore, Howard’s sufficiency challenge is unavailing. 

Howard next argues that the district court erred by failing to rule on two

objections he made to comments made by the prosecutor during closing

argument. However, the record shows that the trial judge responded to

Howard’s objections by taking timely, corrective action to both instances of

alleged prosecutorial misconduct complained of by Howard. Furthermore, the

strength of the evidence of defendant’s guilt on the firearm charge was

considerable. Thus, Howard has not shown that the comments affected his

substantial rights, or that the prosecutor’s conduct contributed to the guilty
No. 06-11264

3

verdict. See United States v. Bermea, 30 F.3d 1539, 1563 (5th Cir. 1994); United

States v. Johnston, 127 F.3d 380, 390 (5th Cir. 1997). 

Howard’s third argument on appeal is that the district court erred by

applying § 3C1.1 of the Sentencing Guidelines to enhance his base offense level

on the ground that he obstructed justice by denying that he possessed a firearm

in furtherance of a drug trafficking offense. The district court’s findings are

plausible in light of the record as a whole, and, thus, it did not clearly err in

concluding that an enhancement for obstruction of justice was warranted. See

United States v. Powers, 168 F.3d 741, 752 (5th Cir. 1999); United States v.

Laury, 985 F.2d 1293, 1308-1309 (5th Cir. 1993). 

Howard’s final argument is that the district court erred in denying him a

reduction in his base offense level for the two drug charges to which he pled

guilty and for which he accepted responsibility. See U.S.S.G. § 3E1.1(a).

Because Howard did not admit all of the conduct relevant to his offenses, the

district court’s determination is not without foundation. See United States v.

Washington, 340 F.3d 222, 227 (5th Cir. 2003). 

The judgment of the district court is AFFIRMED.