     Case: 12-40631       Document: 00512199227         Page: 1     Date Filed: 04/05/2013




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

                                                                            FILED
                                                                            April 5, 2013
                                     No. 12-40631
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ORLANDO GARCIA, also known as Orlando Amador Garcia

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 2:10-CR-1128-11


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Orlando Garcia appeals his jury-trial conviction for conspiracy to possess,
with intent to distribute, more than 500 grams of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Garcia, who testified
at trial, claims the evidence was insufficient to support his conviction.
       Denial of a motion for a judgment of acquittal is reviewed de novo. E.g.,
United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012), cert. denied, 2013
WL 598783 (19 Feb. 2013). The conviction will be upheld if, “viewing the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40631     Document: 00512199227      Page: 2   Date Filed: 04/05/2013

                                  No. 12-40631

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”.
Id. (quotation marks and citation omitted).
      Garcia’s conspiracy conviction required the Government to prove: “(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”. Id. (quotation marks and citation
omitted).
      The Government’s evidence, including numerous recorded telephone
conversations, showed Garcia, his co-defendants, and an unnamed co-conspirator
were members of a prison gang that required its members to sell drugs, and
Garcia devised a plan to sell two pounds of methamphetamine in Arkansas; this
evidence was sufficient to prove he knowingly and voluntarily agreed to violate
federal narcotics laws. E.g., id. at 366-68; United States v. Baptiste, 264 F.3d
578, 587-88 (5th Cir. 2001), rev’d on other grounds, 309 F.3d 274 (5th Cir. 2002).
The jury was free to reject Garcia’s explanation that he did not intend to carry
out the plan. E.g., United States v. Meza, 701 F.3d 411, 420 (5th Cir. 2012).
Further, that the methamphetamine was never put on the market or sold is of
no consequence. E.g., Iannelli v. United States, 420 U.S. 770, 777-78 (1975);
United States v. Dixon, 132 F.3d 192, 200-01 (5th Cir. 1997).
      AFFIRMED.




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