### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-31029 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. PERLA CECILIA GUEL; WALTER JOSE MIRANDA, Defendants-Appellants

Appeals from the United States District Court for the Western District of Louisiana USDC No. 1:09-CR-109

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Walter Jose Miranda appeals his ju ry t r i al conviction for two counts of possession of a prohibited object in a federal prison. He argues that the evidence presented at trial was insufficient to support his conviction. He maintains that the district court abused its discretion by admitting into evidence the heroin and marijuana filled balloons that were found in his feces because the Government did not sufficiently authenticate the evidence. Miran d a a l s o a rgues that the district court’s jury instruction on constructive p o s s e s s io n w a s p l ainly e rroneous. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 2, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-31029 Document: 00511943541 Page: 1 Date Filed: 08/02/2012No. 10-31029

Miran d a d i d n ot move for a judgment of acquittal at the close of the Government’s case or the close of the evidence. He did, however, file a pretrial motion to suppress the drug evidence and he objected to the introduction of the drug evidence d u r i ng trial. On appeal, Miranda makes separate arguments regarding the s ufficiency of the evidence and the district court’s admitting the drugs into evidence. Thus, Miranda properly preserved his challenge to the admission of the drug evidence, but he failed to preserve hi s c h a llenge to the sufficiency of the evidence. See United States v. Aguilar , 503 F.3d 431, 435 (5th Cir. 2007). As Miranda di d not object to the jury instructions in the district court, he failed to properly preserve that claim. See United States v. Hickman , 331 F.3d 439, 443 (5th Cir. 2003); F E D

. R. C R I M

. P. 30(d). Accordingly, we review Miranda’s challenges to the sufficiency of the evidence and the jury instructions for plain error and his challenge to the admission of the drug evidence for abuse of discretion. See United States v. Delgado , 672 F.3d 320, 331-32 (5th Cir. 2012) (en banc); United States v. Jackson , 636 F.3d 687, 692 (5th Cir. 2011); Hickman , 331 F.3d at 443. To show plain error, Miranda must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States , 556 U.S. 12 9 , 1 3 5 ( 2 0 0 9). If he makes such a showing, we have the discretion to correct the error, but will do so only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. See id. For the insufficiency of the evidence to be clear or obvious error, the conviction must be

a manifest miscarriage of justice. Delgado , 672 F.3d a t 3 3 1. A manifest miscarriage of justice “occurs only where the record is devoid of evidence pointing to guilt or contains evidence on a key element of the offense that is so tenuous that a conviction would be shocking.” U n i t e d States v. RodriguezMartinez , 480 F.3d 303, 307 (5th Cir. 2007) (internal quotation marks, brackets, and citation omitted). The evidence presented at trial showed that Miranda, a prisoner at United States Penitentiary Pollock, was placed into a dry c e l l w i th no running water
2 Case: 10-31029 Document: 00511943541 Page: 2 Date Filed: 08/02/2012No. 10-31029

after he was observed kissing co-defendant Perla Ce c i l i a Guel in a strange

manner and immediately taking a drink after each kiss. While locked in the dry cell, Miranda defecated three times, and prison officers found bal l o o n s i n the feces and opened balloons hidden in the holes in the walls of t h e d ry cell. The contents of the balloons tested positive for heroin and marijuana. Based upon this evidence, the record is not devoid of evidence of Miranda’s guilt, and Miranda’s conviction is not a manifest miscarriage of justice. See Delgado , 672 F.3d at 33 1 ; United States v. Flores-Chapa , 48 F.3d 156, 161 (5th Cir. 1995) (“Juries are f

r e e to use their common sense and apply common knowledge, observation, and ex p e r i e n c e gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence.”). There was an admitted break in the chain of custody of the drug evidence. However, “[a]ny break in the chain of custody goes to the weight of the evidence, not its admissibility.” United States v. Smith , 481 F.3d 259, 265 (5th Cir. 2007). Wh i l e the number of balloons collected by prison officials did not match th e number i n t r oduced into evidence, testimony presented by the Government explained the reason for the discrepancy. Even though the dry c e ll was not thoroughly searched before Miranda was placed in it, there was sufficient evidence from which an infer e n c e c o u l d be drawn that the drug filled balloons recovered from Miranda’s dry cell had been ingested by Miranda. Accordingly, the Government made the necessary showing of competent information t o support authenticity, and the district court did not abuse it s d i s c r e t ion by admitting the drug evidence. See id. The dist ri c t c o urt instructed the jury that a person is in constructive possession of a thing if he “knowingly has the power -- both the power and the i n t e n t i o n at a given time to exercise dominion or control over a thing, eith e r directly or through another person or persons.” That instruction was part of a l a r ger instruction on possession that was a verbatim copy of the pattern jury instruction on possession. See Fif th C ircuit P attern Jury Instruction 1.31 (2001).

3 Case: 10-31029 Document: 00511943541 Page: 3 Date Filed: 08/02/2012No. 10-31029

The district court did not commit error, plain or otherwise, in its jury instruction on constructive possession. See United States v. Cano-Guel , 167 F.3d 900, 906 (5th Cir. 1999). The judgment of the district court is AFFIRMED as to Miranda. The attorney appointed to represent Guel has moved for leave to withdraw and has filed a brief in accordance with Anders v. California , 3 8 6 U .S. 738 (1967), and United States v. Flores , 632 F.3d 229 (5th Cir. 2011). Guel has filed

a response. We have reviewed counsel’s brief and the relevant p o r t i o ns of the record reflected therein, as well as Guel’s response. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, the motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the AP P E AL IS DISMISSED as to Guel. See5 T H C I R

. R. 42.2.

4 Case: 10-31029 Document: 00511943541 Page: 4 Date Filed: 08/02/2012