     Case: 18-10971      Document: 00515273518         Page: 1    Date Filed: 01/15/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                             FILED
                                                                        January 15, 2020
                                    No. 18-10971                          Lyle W. Cayce
                                  Summary Calendar                             Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

NICHOLAS GOMEZ; COTY FRANKS,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:18-CR-8-2
                             USDC No. 4:18-CR-8-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Nicholas Gomez and Coty Franks were indicted for conspiracy to possess
with intent to distribute 500 grams or more of methamphetamine. A jury
found them guilty as charged. Both Gomez and Franks appeal, challenging
the sufficiency of the evidence to support the convictions. Gomez argues that
the evidence did not establish that he joined a conspiracy and instead only



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10971

showed that he entered into an agreement with his girlfriend, Sueellen Mobley,
to participate in a small conspiracy involving less than 500 grams of
methamphetamine. Franks argues that the evidence did not establish that he
entered into an agreement to violate the narcotics laws or that he should have
reasonably foreseen that the conspiracy involved 500 grams or more of
methamphetamine. He contends that the evidence showed that he only sold
small amounts, that he was not part of the larger conspiracy, and that, even if
he was part of the conspiracy, the amount of 500 grams was not reasonably
foreseeable based on his jointly undertaken criminal activity.
       Gomez also challenges the admissibility at trial of his statements to law
enforcement authorities. 1 He contends that the Government objected to the
use of portions of the statement in the preparation of the presentence report
and that the Government’s post-trial objection establishes that the statement
was not reliable and should not have been admitted.
                                             I.
       Both Gomez and Franks moved for judgments of acquittal at the close of
the Government’s case, and therefore, preserved the challenge to the
sufficiency of the evidence; we review de novo. See United States v. Garcia-
Gonzalez, 714 F.3d 306, 313 (5th Cir. 2013). In reviewing a challenge to the
sufficiency of the evidence, we must determine whether “after viewing the
evidence and all reasonable inferences in the light most favorable to the
[Government], any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Vargas-



       1  In his Statement of the Issues, Gomez also challenges the sentencing guidelines
enhancement for possession of a weapon but fails to address this point in his brief, waiving
any challenge. In any event, he was sentenced to the statutory mandatory minimum
pursuant to the penalty enhancement filing by the Government under 21 U.S.C. § 851 such
that calculation of the guidelines did not affect his sentence.


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                                 No. 18-10971

Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)) (emphasis in original).
      To obtain a conviction under § 841(a)(1), the Government must prove
that the defendant knowingly possessed a controlled substance with the intent
to distribute it. United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir.
2008); § 841(a)(1). A conviction for conspiracy to violate § 841(a)(1) requires
proof that an agreement existed between two or more persons to violate federal
narcotics laws, that the defendant knew of the agreement, and the defendant
voluntarily participated in the conspiracy.       Id.; § 846.    Additionally, the
Government was required to show that Gomez and Franks were directly
involved with 500 grams or more of methamphetamine or that 500 grams or
more of methamphetamine was a reasonably foreseeable quantity of
methamphetamine within the scope of jointly undertaken criminal activity.
See United States v. Haines, 803 F.3d 713, 739-41 (5th Cir. 2015).
      Mobley testified that Gomez assisted her in arranging and performing
drug transactions. He accompanied Lee on a trip to obtain a kilogram of
methamphetamine. Text messages between Mobley and Gomez reveal
discussions over potential drug transactions. Gomez provided statements to
authorities   indicating   his   knowledge      of   the    large   quantities    of
methamphetamine trafficked by Mobley and Lee. He also submitted a letter
indicating that he was involved in a major drug-trafficking organization. This
evidence was sufficient for a rational trier of fact to find beyond a reasonable
doubt that Gomez entered into an agreement with persons to violate the
narcotics law and that 500 grams or more of methamphetamine was a
reasonably foreseeable quantity of methamphetamine within the scope of his
jointly undertaken criminal activity.       Haines, 803 F.3d at 739-41; Patino-
Prado, 533 F.3d at 309.



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                                No. 18-10971

      Regarding Franks, Mobley testified that she had a relationship built on
some form of trust. He came to her residence to perform drug transactions.
Mobley initially purchased methamphetamine from Franks before he became
her customer. He engaged in approximately 10 transactions with her with
amounts ranging from seven grams to one ounce. Text messages between
Franks and Mobley revealed that he was selling the methamphetamine he
purchased from Mobley. Thus, there was sufficient evidence of an agreement
to violate the narcotics laws. See Patino-Prado, 533 F.3d at 309.
      Additionally, there was evidence that Franks sought to obtain contact
information for Stephen Lee, and the evidence showed that Lee was a large-
scale supplier of methamphetamine. Mobley was living with Lee at one point,
and Franks came to the house to engage in a drug transaction. Messages from
Franks to other conspirators revealed he had knowledge of a source that
provided methamphetamine in large quantities.          Viewed in a light most
favorable to the Government, the evidence established that 500 grams or more
of   methamphetamine      was    a   reasonably      foreseeable    quantity     of
methamphetamine to Franks and within the scope of jointly undertaken
criminal activity. See Haines, 803 F.3d at 739.
                                      II.
      Though Gomez objected to the admissibility of his statement at trial, his
argument was based on the assertion that it was cumulative of other testimony
and therefore not admissible under Federal Rule of Criminal Procedure 403.
He did not contend that the statement was unreliable and did not make any
argument at sentencing challenging the statement. Accordingly, review is
limited to plain error. See United States v. Vasquez, 766 F.3d 373, 379 (5th
Cir. 2014); United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009).



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                                 No. 18-10971

      Gomez’s conclusory argument fails to show that the Government’s
objection to the uncorroborated use of information regarding one drug deal
means that all of Gomez’s statements (specifically, those admitted at trial) are
unreliable under plain error review. He does not show that the district court
committed clear or obvious error in admitting his statements at trial. See
Puckett v. United States, 556 U.S. 129, 135 (2009); Vasquez, 766 F.3d at 379.
Even if the admission of the statements was plain or obvious error, the error
did not affect Gomez’s substantial rights.      See Puckett, 556 U.S. at 135;
Vasquez, 766 F.3d at 379. In light of text messages, Mobley’s testimony, and
Gomez’s letter, the evidence of Gomez’s guilt was substantial even without the
admission of his statement.
      The judgments of the district court are AFFIRMED.




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