     Case: 11-51013     Document: 00512028195         Page: 1     Date Filed: 10/22/2012




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

                                                                            FILED
                                                                         October 22, 2012
                                     No. 11-51013
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOE MADRID, also known as JOSE MADRID,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:10-CR-2624-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Joe Madrid was convicted by a jury of conspiracy to
import 100 kilograms or more of marijuana (Count One), importation of 100
kilograms or more of marijuana (Count Two), conspiracy to possess with intent
to distribute 100 kilograms or more of marijuana (Count Three), and possession
with intent to distribute 100 kilograms or more of marijuana (Count Four). He
was sentenced to concurrent 10-year terms of imprisonment on all counts, which



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51013

is the mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(B)(vii). He
challenges the sufficiency of the evidence as to all of these convictions.
      As Madrid preserved his sufficiency challenge, we apply de novo review
and decide “whether, viewing all the evidence in the light most favorable to the
verdict, a rational trier of fact could have found that the evidence established the
essential elements of the offense beyond a reasonable doubt.” United States v.
Villarreal, 324 F.3d 319, 322 (5th Cir. 2003) (citing Jackson v. Virginia, 443 U.S.
307, 319 (1979)). All reasonable inferences and all credibility determinations are
made in the light most favorable to the verdict. Villarreal, 324 F.3d at 322.
      Madrid first contends that there was insufficient evidence to establish that
he conspired to import marijuana or that he conspired to possess marijuana with
the intent to distribute.    He argues that the testimony given by several
government witnesses lacks credibility because they are convicted felons who
testified against him in the hope of obtaining some benefit from the government.
He also asserts that there is a dearth of corroborating documentary evidence.
      Proof of a conspiracy requires evidence showing “(1) an agreement between
two or more persons to pursue an unlawful objective; (2) the defendant’s
knowledge of the unlawful objective and voluntary agreement to join the
conspiracy; and (3) an overt act by one or more of the members of the conspiracy
in furtherance of the objective of the conspiracy.” United States v. Fernandez,
559 F.3d 303, 322 (5th Cir. 2009) (quotation marks and citation omitted). A
defendant’s conspiracy conviction may rest on the uncorroborated testimony of
a coconspirator, even if that person is testifying in exchange for leniency, as long
as the witness’s testimony is not incredible. United States v. Patino-Prado, 533
F.3d 304, 309 (5th Cir. 2008).
      The government presented several witnesses who testified that Madrid
agreed to participate, and did participate, in schemes to import marijuana and
to possess distributable amounts of marijuana. None of this testimony was
incredible as a matter of law. See id. Further, assessing the weight and

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                                  No. 11-51013

credibility of the evidence is the “exclusive province” of the jury; thus, to the
extent Madrid bases his sufficiency challenge on an argument that the
government’s witnesses lacked credibility, it fails. See United States v. Johnson,
381 F.3d 506, 508 (5th Cir. 2004).       Madrid’s challenge to his conspiracy
convictions (Count One and Count Three) is without merit.
      Madrid next claims that there was insufficient evidence to establish that
he knowingly possessed marijuana with the intent to distribute or that he
imported marijuana. “In order to prove possession of marijuana with intent to
distribute, the government must prove beyond a reasonable doubt the
(1) knowing possession (2) of marijuana (3) with intent to distribute.” United
States v. Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008). These same
elements, along with proof that the defendant played a role in bringing the
marijuana into the United States from a foreign country, may support an
importation conviction. See United States v. Rodriguez-Mireles, 896 F.2d 890,
893 (5th Cir. 1990). “Possession may be actual or constructive and may be
proved by either direct or circumstantial evidence.” United States v. Mata, 491
F.3d 237, 242 (5th Cir. 2007).
      There was testimony that on several occasions Madrid assisted in the
unloading of vehicles that had been used to smuggle distributable quantities of
marijuana into the United States. In the course of so doing, Madrid possessed
the marijuana. He has not shown that the evidence was insufficient with regard
to his conviction of possession of marijuana with intent to distribute (Count
Four).
      As to his conviction for importation of marijuana, Madrid points out that
there is no evidence that he possessed or occupied a vehicle that contained
marijuana at the point of entry. “One need not personally be caught exactly at
the border to be indicted for importation of a controlled substance. Neither does
one have to be directly involved in the transportation of the contraband.” United
States v. Gramlich, 551 F.2d 1359, 1363 (citation omitted). Under the rule of

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                                  No. 11-51013

Pinkerton v. United States, 328 U.S. 640 (1946), “a conspirator can be found
guilty of a substantive offense committed by a co-conspirator and in furtherance
of the conspiracy, so long as the co-conspirator’s acts are reasonably foreseeable.”
Mata, 491 F.3d at 242 n.1
      The evidence shows that Madrid conspired with others to import
marijuana into the United States, and that, for this very purpose, he
accompanied a married couple in Mexico and assisted in their importation of
marijuana on at least three occasions. The evidence was therefore sufficient,
under a Pinkerton theory of liability to support Madrid’s conviction on Count
Two based on the importation of the contraband by a co-conspirator. See id.
      Finally, Madrid asserts that the evidence was insufficient to support a
determination that any of his offenses involved 100 kilograms or more of
marijuana. He contends that the evidence could be interpreted as showing that
he was involved in no more than three loads of marijuana and that each load
contained just 31.7 kilograms of contraband, which would not add up to 100
kilograms. We view the evidence in the light most favorable to the verdict. See
Villarreal, 324 F.3d at 322. Madrid’s contention fails to establish that there was
insufficient evidence of the quantity of the marijuana involved.
      AFFIRMED.




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