     Case: 14-50104       Document: 00512845578         Page: 1     Date Filed: 11/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-50104
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         November 21, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

LAURO BELTRAN,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:13-CR-631-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       A jury convicted Lauro Beltran of conspiracy to possess, with intent to
distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 846.
Beltran contends the evidence was insufficient to convict him because only
circumstantial evidence linked him to the conspiracy, and that evidence was
based primarily on the testimony of co-conspirators motivated to testify by the
possibility of a sentence-reduction.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50104

      Beltran did not move, under Federal Rule of Criminal Procedure 29, for
judgment or acquittal, based on insufficient evidence, at the close of the
Government’s case.       (Beltran did not present evidence.)         Therefore, his
sufficiency-of-the-evidence claim is reviewed only for a manifest miscarriage of
justice. United States v. Delgado, 672 F.3d 320, 331 (5th Cir. 2012) (en banc)
(citation omitted); United States v. Salazar, 542 F.3d 139, 142 (5th Cir. 2008)
(citation omitted). Under that very demanding standard, our court will reverse
only if “the record is devoid of evidence of guilt or . . . the evidence is so tenuous
that a conviction is shocking”. Salazar, 542 F.3d at 142 (citation and internal
quotation marks omitted).
      To establish a conspiracy under 21 U.S.C. § 846, the Government must
prove beyond a reasonable doubt that “‘(1) an agreement existed between two
or more persons to violate federal narcotics law, (2) the defendant knew of the
existence of the agreement, and (3) the defendant voluntarily participated in
the conspiracy’”. United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012)
(quoting United States v. Ochoa, 667 F.3d 643, 648 (5th Cir. 2012)). “To be a
conspiracy, an express, explicit agreement is not required; a tacit agreement is
enough.” United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997)
(citation omitted). Pertinent to the claim at hand, the elements of a conspiracy
offense “may be established solely by circumstantial evidence”. Id. at 1189
(citation omitted).
      Beltran falls far short of demonstrating the requisite “manifest
miscarriage of justice”. The evidence at trial was that Beltran conspired with
Rigo Berto Arenas and Armando Luis Ramirez to possess, with intent to
distribute, cocaine. For example, Beltran recruited both Ramirez and Arenas
to transport narcotics from Mexico to various cities in the United States;
telephone records showed Ramirez and Arenas were both in contact with a man



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                                No. 14-50104

named “Franky” during the relevant time-period of the conspiracy; Ramirez
and Arenas identified “Franky” as Beltran; Beltran was found in possession of
almost $600,000 while traveling from Chicago, Illinois, to San Antonio, Texas,
which was the same route Ramirez traveled for Beltran during a drug-
trafficking trip; and Ramirez testified that Beltran told him he was involved
in trafficking narcotics from Mexico to the United States.
      To the extent Beltran challenges the credibility of the Government’s
witnesses, “the weight and credibility of the evidence is within the exclusive
province of the jury”. United States v. Johnson, 381 F.3d 506, 508 (5th Cir.
2004) (per curiam) (citation omitted).    Further, Beltran fails to show the
testimony of his co-conspirators relates to facts outside their observation or
knowledge. E.g., United States v. Valdez, 453 F.3d 252, 257 (5th Cir. 2006)
(citation omitted).
      AFFIRMED.




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