     Case: 11-50810     Document: 00511934255         Page: 1     Date Filed: 07/26/2012




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

                                                                            FILED
                                                                            July 26, 2012
                                     No. 11-50810
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAQUEL NICOLE BARRANDEY; ULISIES QUILIMOCO RUBIO; MOISES
QUILIMOCO RUBIO,

                                                  Defendants-Appellants


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:11-CR-48-2


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Following a joint trial, Raquel Nicole Barrandey, Ulisies Quilimoco Rubio
(Ulisies), and Moises Quilimoco Rubio (Moises) were convicted by jury verdict of
conspiracy to possess with intent to distribute more than 500 grams of cocaine.
Barrandey was sentenced to 135 months of imprisonment and five years of
supervised release. Ulisies was sentenced to 97 months of imprisonment and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50810

five years of supervised release.    Moises was sentenced to 121 months of
imprisonment and five years of supervised release.
      Barrandey and Ulisies argue that there was insufficient evidence adduced
at trial to support their convictions and that the circumstantial evidence against
them equally or nearly equally supported theories of guilt and innocence. This
issue was preserved in the district court, and our review is de novo. See United
States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008). Viewing the evidence in the
light most favorable to the jury’s verdict and drawing all reasonable inferences
to support that verdict, as we must, id., the evidence showed the following.
Moises had been identified by police in a previous investigation as a person who
used the dietary supplement Inositol to cut cocaine. Moises, Barrandey, and
Ulisies each separately bought large amounts of Inositol from a Vitamin World
store. In all, 60 kilograms of Inositol, which is normally used to cut cocaine on
a one-to-one ratio, were purchased. Drug paraphernalia, plastic baggies, digital
scales, Inositol bottles, and acetone, which is used for repackaging cocaine that
has already been cut, were all found present at the Rubio residence.
Additionally, a very small amount of cocaine, the purity level of which was too
low to be tested, was located at the residence. Barrandey stated during an
interview that she had seen the Inositol used in the backyard of the residence
to cut cocaine. Confronted with this evidence, a rational trier of fact could have
concluded that two or more people entered an agreement to violate the narcotics
laws, that Barrandey, Ulisies, and Moises knew of the agreement, that
Barrandey, Ulisies, and Moises voluntarily participated in the conspiracy, and
that the conspiracy involved more than 500 grams of cocaine. See Jackson v.
Virginia, 443 U.S. 307, 319 (1979); United States v. Patino-Prado, 533 F.3d 304,
309 (5th Cir. 2008); Percel, 553 F.3d at 910; United States v. Turner, 319 F.3d
716, 722-23 & n.7 (5th Cir. 2003).
      Barrandey and Moises argue that their Sixth Amendment right to confront
witnesses against them was violated when the Government’s witnesses referred

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to a statement by a non-testifying confidential informant (CI) that cocaine was
being sold from Moises’s residence, where Barrandey also lived. As this issue
was not raised at trial, we review it only for plain error. See United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); United States v. Acosta,
475 F.3d 677, 680-81 (5th Cir. 2007). Under that standard, an appellant must
show a forfeited error that is clear or obvious and that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Assuming arguendo that the evidence that Barrandey and Moises complain of
was testimonial hearsay that was barred by the Confrontation Clause in light
of Crawford v. Washington, 541 U.S. 36, 54-56 (2004), Barrandey and Moises
cannot show that their substantial rights were affected because the evidence was
sufficient to sustain their convictions without reference to statements made by
the CI. See Puckett, 556 U.S. at 135.
      Finally, Moises argues that the Government’s witnesses testified to
statements Barrandey made during interviews that she had bought Inositol for
another person, that she had seen another person cutting cocaine with Inositol,
and that she had seen another person cook and smoke crack cocaine on spoons
found in the house. Moises contends that, because Barrandey did not testify at
trial, he was denied his right to confront Barrandey as to those statements, in
violation of Bruton v. United States, 391 U.S. 123 (1968). We review this issue,
raised for the first time on appeal, only for plain error. See United States v.
Walker, 148 F.3d 518, 522 (5th Cir. 1998). We conclude that there was no
Bruton error as the out-of-court statements attributable to Barrandey did not
directly implicate Moises and, in light of the evidence that several people lived
in the residence, that the Rubios had another brother who was a drug user, and
that Moises’ friends had been in the home to smoke marijuana, the jury could



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only complete the inference that Barrandey’s out-of-court statements implicated
Moises by relying on the other evidence introduced at trial. See id.
      AFFIRMED.




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