     Case: 16-50630      Document: 00514292934         Page: 1    Date Filed: 01/03/2018




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

                                    No. 16-50630                                FILED
                                  Summary Calendar                        January 3, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FELIPE CARMONA RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-345-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Felipe Carmona Rodriguez appeals his jury trial convictions and
sentences for conspiracy to possess with intent to distribute more than 500
grams of cocaine and for possession with intent to distribute less than 500
grams of cocaine. Rodriguez argues that there was insufficient evidence to
convict him of the conspiracy count, that the district court plainly erred by not
instructing the jury that it is legally impossible to conspire with a Government


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50630

agent, that the district court erred by applying a two-level enhancement under
U.S.S.G. § 2D1.1(b)(1), and that the district court erred by not ruling on his
motion for a new trial and by not conducting an evidentiary hearing on the
motion.
      Rodriguez’s points of error are unavailing. First, the evidence, viewed in
the light most favorable to the Government with reasonable inferences made
in support of the jury’s verdict, was sufficient to support Rodriguez’s conspiracy
conviction. See United States v. Romans, 823 F.3d 299, 311 (5th Cir.), cert.
denied, 137 S. Ct. 195 (2016). Contrary to Rodriguez’s assertion, the evidence
was sufficient to establish the existence of a conspiracy, and not merely that
he bought and sold drugs. See United States v. Zamora, 661 F.3d 200, 209 (5th
Cir. 2011); United States v. Garcia, 567 F.3d 721, 732 (5th Cir. 2009).
      Second, given that the totality of the evidence establishes that Rodriguez
conspired with non-governmental participants, the mere fact a government
agent was also involved in his scheme did not alone necessitate an instruction
pursuant to Sears v. United States, 343 F.2d 139, 142 (5th Cir. 1975). United
States v. Delgado, 672 F.3d 320, 342 (5th Cir. 2012) (en banc). Because the
Government presented evidence to establish that a conspiracy existed with
individuals who were not government agents or informants, the district court
did not plainly err in failing to issue a Sears instruction. See United States v.
Slaughter, 238 F.3d 580, 585 (5th Cir. 2001).
      Third, the evidence adduced at trial was sufficient to “show a temporal
and spatial relationship of the weapon, the drug trafficking activity, and the
defendant.” See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir.
2010); cf. United States v. Severin, 221 F. App’x 299, 302-03 (5th Cir. 2006).
The district court’s factual finding that the § 2D1.1(b)(1) enhancement applies
was therefore not clearly erroneous. See Romans, 823 F.3d at 317.



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                                 No. 16-50630

      Finally, to the extent that Rodriguez argues that the district court erred
by failing to rule on his motion for a new trial, the district court’s ruling
following limited remand makes moot this aspect of Rodriguez’s argument. See
Calderon v. Moore, 518 U.S. 149, 150 (1996). To the extent he contends that
the district court erred by not conducting an evidentiary hearing, he fails to
explain how his case presented an extraordinary situation warranting an
evidentiary hearing. See United States v. Mahmood, 820 F.3d 177, 190 (5th
Cir. 2016).
      AFFIRMED.




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