     Case: 16-11221      Document: 00514267835         Page: 1    Date Filed: 12/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 16-11221                                    FILED
                                  Summary Calendar                          December 11, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CLETO TARIN; HECTOR SALDIVAR,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:16-CR-21-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       A jury convicted Cleto Tarin and Hector Saldivar of conspiracy to possess
with intent to distribute 50 grams or more of a mixture or substance containing
a detectable amount of methamphetamine.                  See 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), 846. The district court sentenced Tarin to a 420-month prison term
and a four-year term of supervised release and sentenced Saldivar to a 400-




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                    No. 16-11221

month prison term and a five-year term of supervised release. They challenge
the sufficiency of the evidence, and Saldivar challenges his sentence.
       To convict on a drug conspiracy charge, the Government must prove
beyond a reasonable doubt that an agreement existed between two or more
persons to possess the controlled substance with the intent to distribute it, the
defendant knew of that agreement and voluntarily participated in it, and the
conspiracy involved at least the amount of the substance proscribed by the
applicable statute. See United States v. DeLeon, 247 F.3d 593, 596 (5th Cir.
2001).   And because neither Tarin nor Saldivar moved for a judgment of
acquittal, review of the sufficiency of the evidence is limited to determining
whether there was a manifest miscarriage of justice, which results only if the
record is devoid of evidence pointing to guilt or the evidence on a key element
of the offense is so tenuous that a conviction would be shocking. See United
States v. Burton, 324 F.3d 768, 770 (5th Cir. 2003); see also FED. R. CRIM. P.
29(a), (c).
       Having thoroughly reviewed the record and the arguments in the briefs,
we conclude that no manifest miscarriage of justice occurred here. See United
States v. Green, 293 F.3d 886, 895 (5th Cir. 2002). The record is replete with
evidence that each defendant committed the crime charged against him by the
indictment, and that evidence is not tenuous. See Burton, 324 F.3d at 770.
Indeed, the testimony of Miguel Martinez was by itself sufficient to allow the
jury “to infer a voluntary and knowing agreement between” Saldivar and
Martinez and between Tarin and Martinez “to violate the narcotics laws.”
United States v. Akins, 746 F.3d 590, 605 (5th Cir. 2014). Given the standard
of review and the overwhelming evidence, the sufficiency of the evidence claims
cannot stand. See Burton, 324 F.3d at 770; Green, 293 F.3d at 895. We reject
also Saldivar’s challenge to the enhancement of the base offense level for



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                                     No. 16-11221

possessing a dangerous weapon, see U.S.S.G. § 2D1.1(b)(1); for maintaining a
premises for the purpose of manufacturing or distributing a controlled
substance, see U.S.S.G. § 2D1.1(b)(12); and for having a leadership role in the
criminal activity, see U.S.S.G. § 3B1.1(c).
      Saldivar waived appellate review of the dangerous weapon enhancement
when he withdrew his objection at the sentencing hearing, and waived claims
are unreviewable. See United States v. Rodriguez, 602 F.3d 346, 350-51 (5th
Cir. 2010).    He offers nothing that supports the conclusion that the
determination that drug dealing was a principal use of a certain premises is
implausible “in light of the record as a whole” or creates “the definite and firm
conviction that a mistake has been committed.” United States v. Ekanem, 555
F.3d 172, 175 (5th Cir. 2009) (internal quotation marks and citations omitted);
see United States v. Benitez, 809 F.3d 243, 250 (5th Cir. 2015), cert. denied, 130
S. Ct. 1694 (2016). All that is required under § 2D1.1(b)(12) is that drug
dealing be “one of the main purposes for” maintaining the premises. United
States v. Haines, 803 F.3d 713, 744 (5th Cir. 2015); see § 2D1.1, comment.
(n.17). In light of the record as a whole, including the concession by Saldivar
that he used the premises for narcotics storage and distribution, Saldivar “has
not shown how the district court’s decision was erroneous.” Haines, 803 F.3d
at 745. Also unavailing is Saldivar’s challenge to the enhancement for having
a leadership role. As the district court noted, Saldivar did not present evidence
to controvert the presentence report’s recitation, corroborated by an officer’s
testimony, that Saldivar instructed a co-conspirator to conceal packages of
methamphetamine when she and Saldivar were stopped by the police. See
Benitez, 809 F.3d at 250.
      AFFIRMED.




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