     Case: 13-60047      Document: 00512477458         Page: 1    Date Filed: 12/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60047
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 19, 2013
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

LEE EARL BROOKS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:11-CR-67-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Lee Earl Brooks appeals his jury trial conviction for conspiracy to possess
with intent to distribute 100 kilograms or more of marijuana (Count 1),
attempted possession with intent to distribute 50 kilograms of marijuana
(Count 2), possession with intent to distribute methamphetamine (Count 3),
and carrying a firearm during and in relation to a drug trafficking crime
(Count 4). Brooks was sentenced to a total of 211 months in prison.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60047

      First, Brooks asserts that he was denied the effective assistance of
counsel.   “The general rule in this circuit is that a claim for ineffective
assistance of counsel cannot be resolved on direct appeal when the claim has
not been raised before the district court since no opportunity existed to develop
the record on the merits of the allegations.” United States v. Cantwell, 470
F.3d 1087, 1091 (5th Cir. 2006) (internal citation and quotation marks
omitted). We decline to address Brooks’s allegations of ineffective assistance
of counsel because the record is not sufficiently developed to consider the
claims.
      Next, Brooks argues that the evidence was not sufficient to allow the jury
to find him guilty of all four counts of the indictment and that the district court
erred in denying his motion for judgment of acquittal. Ordinarily, in assessing
the sufficiency of the evidence, we determine whether after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt, and our review is de novo. See United States v. Lopez-Moreno, 420 F.3d
420, 437-438 (5th Cir. 2005); United States v. McDowell, 498 F.3d 308, 312 (5th
Cir. 2007). However, Brooks failed to properly preserve his challenge to the
sufficiency of the evidence as to Counts 1 and 2. Therefore, we review Brooks’s
challenge to the sufficiency of the evidence as to those counts to determine
whether there was a manifest miscarriage of justice. United States v. Delgado,
672 F.3d 320, 332 (5th Cir.) (en banc), cert. denied, 133 S. Ct. 525 (2012). 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.” United States v.
Rodriguez-Martinez, 480 F.3d 303, 307 (5th Cir. 2007) (internal quotation
marks, brackets, and citation omitted).



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                                 No. 13-60047

      A review of the record indicates that there was sufficient evidence of guilt
as to Counts 1 and 2. The testimony of Brooks’s coconspirators was sufficient
to support his conviction on those counts. Therefore, Brooks has not shown
that his conviction resulted in a manifest miscarriage of justice. See Delgado,
672 F.3d at 332.
      Similarly, we conclude that the evidence was sufficient as to Counts 3
and 4. Given that the methamphetamine was found in one bathrobe pocket
and multiple packages of marijuana were found in the other pocket and in close
proximity to currency, drug paraphernalia, and a gun, it was reasonable for
the jury to infer Brooks’s intent to distribute. See United States v. Kates, 174
F.3d 580, 582 (5th Cir. 1999). Further, and contrary to Brooks’s argument, the
amount of methamphetamine found, 3.9 grams, was sufficient for the jury to
infer intent to distribute. See United States v. Cockrell, 587 F.3d 674, 681 (5th
Cir. 2009).
      With regard to Count 4, the trial evidence showed that Brooks was
stopped in a rental vehicle, and after a search of the vehicle, Brooks was found
to be in possession of a nine millimeter pistol and marijuana that had been
packaged for sale. The handgun was readily accessible to Brooks, having been
found on the driver’s floorboard. Given the foregoing, a reasonable juror could
have found that the firearm was available to provide protection to Brooks in
connection with his drug-trafficking conduct. See United States v. Smith, 481
F.3d 259, 264 (5th Cir. 2007).
      By failing to address the district court’s ruling on prejudice and its
reasons for admitting evidence of other firearms possessed by Brooks during
different drug transactions encompassed by the conspiracy, he has not shown
that the district court abused its discretion in admitting evidence of the other
firearms. See United States v. Jackson, 636 F.3d 687, 692 (5th Cir. 2011).



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                                 No. 13-60047

Likewise, we conclude that the district court did not plainly err in responding
to the jury’s questions. See United States v. Stevens, 38 F.3d 167, 170 (5th Cir.
1994); United States v. Rogers, 126 F.3d 655, 660 (5th Cir. 1997).
      Brooks has abandoned any challenge to the district court’s drug quantity
calculation by failing to adequately brief the issue; Brooks does not identify
specific error in the district court’s calculations, which were extensive and
thorough. Nor does Brooks identify error in the district court’s determination
that his role in the offense was that of a manager or supervisor.            See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      Lastly, we reject, as without merit, Brooks’s argument that his sentence
reflects an unwarranted disparity between him and his codefendants.
See 18 U.S.C. § 3553(a)(6) (indicating that a district court must consider “the
need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct”). Brooks is not
similarly situated to his codefendants, each of whom pleaded guilty.
See United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006).
      AFFIRMED.




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