                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                         June 21, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 05-51766


                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

                           SAMMY GONZALEZ,

                                                   Defendant-Appellant.



           Appeal from the United States District Court
                 for the Western District of Texas
                          (3:04-CR-1911-7)


Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Convicted for conspiracy to possess with intent to distribute

cocaine, Sammy Gonzalez claims: evidence was admitted erroneously;

and the evidence was insufficient to support venue and the jury

verdict.   AFFIRMED.

                                  I.

     A confidential informant (CI), who was a tractor-trailer

driver, advised Drug Enforcement Administration (DEA) Agents of a

drug-trafficking conspiracy in which he had twice obtained cocaine



     *
       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this opinion should not be published and is not precedent except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.
from co-conspirator Memo (in El Paso, Texas, and Phoenix, Arizona);

delivered it to Chicago, Illinois; and received a cash payment for

it.    Accordingly, the Agents engaged the CI’s assistance in a

controlled delivery of cocaine at the same site as the CI’s two

earlier deliveries.

       Co-conspirator Garcia arrived at the delivery site, followed

by Gonzalez.    Garcia paid the CI and left with the cocaine, again

followed by Gonzalez.    Shortly thereafter, DEA Agents and police,

who had been conducting surveillance of the delivery, stopped

Gonzalez’ vehicle and arrested him.

       Gonzalez was charged with, inter alia, conspiracy to possess

with intent to distribute five kilograms or more of a mixture or

substance containing a detectable amount of cocaine, in violation

of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846 (conspiracy count).            At

trial, the jury found him guilty of the conspiracy count, but not

of a related possession count.      He was sentenced, inter alia, to

120 months’ imprisonment.

                                   II.

                                   A.

       Gonzalez contests the admission of evidence related to his

gang   affiliation.     Two   different   standards   of   review   apply,

depending on whether a timely objection was made.

       Gonzalez objected only to the admission of pictures of his

gang-related tattoo and testimony regarding the name of a high-


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ranking gang member. The admission of this objected-to evidence is

reviewed for abuse of discretion, affirming unless its admission

affected Gonzalez’ substantial rights.            E.g., United States v.

Harms, 442 F.3d 367, 377 (5th Cir. 2006), cert. denied, 2007 WL

142534 (29 May 2007).      Regarding that evidence, Gonzalez did not

object,   however,   to   other   testimony     establishing    both:   his

admitting, upon arrest, to gang affiliation; and his having a gang-

related tattoo.

     Gonzalez’    remaining       evidentiary     challenges,     including

asserting an Agent and a police Officer were not properly qualified

to testify regarding gang affiliation, are reviewed only for plain

error, because, as noted, he did not preserve the error in district

court.    E.g., United States v. Thompson, 454 F.3d 459, 464 (5th

Cir.), cert. denied, 127 S. Ct. 602 (2006).           Under such review,

Gonzalez must show, inter alia, a “clear” or “obvious” error.           Id.

The testifying Agent and Officer, one of whom Gonzalez cross-

examined regarding the now-challenged testimony, had relevant gang-

related experience.

     In sum, Gonzalez fails to show admission of the contested

evidence constitutes error.        See Harms, 442 F.3d at 377; United

States v. Green, 324 F.3d 375, 381 (5th Cir. 2003).            Accordingly,

for each applicable standard of review, his challenges fail.




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                                   B.

     Regarding Gonzalez’ sufficiency-of-the-evidence challenge to

venue, the relevant inquiry is whether, viewing the evidence in the

light most favorable to the verdict, the Government established

venue by a preponderance of the evidence, which can be entirely

circumstantial.    See United States v. Solis, 299 F.3d 420, 444-45

(5th Cir. 2002).    Along that line, “venue in conspiracy cases is

proper in any district where the agreement was formed or where an

overt act in furtherance of the conspiracy was performed”.          United

States v. Pomranz, 43 F.3d 156, 158-59 (5th Cir. 1995).

     The evidence established the CI’s initial delivery originated

within the Western District of Texas, Memo’s having given him the

initial load of cocaine in El Paso.     Particularly in the light of

the similar delivery patterns for all three loads of cocaine, the

jury could reasonably have found a conspiracy (as discussed infra

in part II.C.) existed at the time of the conduct in El Paso.             See

Solis, 299 F.3d at 445; Pomranz, 43 F.3d at 158-59.

                                   C.

     Gonzalez’ having properly moved at trial for judgment of

acquittal,   his   sufficiency   challenge   to    the   jury   verdict   is

reviewed in the light most favorable to the verdict, inquiring only

whether a rational juror could find the elements of the offense

established beyond a reasonable doubt.            E.g., United States v.




                                   4
Cuellar, 478 F.3d 282, 287 (5th Cir. 2007) (en banc).                  Such review

does not include weight or credibility of the evidence.                  E.g., id.

      For the charged conspiracy, the Government had to prove beyond

a reasonable doubt:       (1) an agreement existed to violate federal

narcotics laws; (2) Gonzalez knew of its existence; and (3) he

voluntarily participated in it.              E.g., United States v. Gonzales,

121 F.3d 928, 935 (5th Cir. 1997).                Each element may be inferred

from circumstantial evidence.            E.g., United States v. Espinoza-

Seanez, 862 F.2d 526, 537 (5th Cir. 1988).                Along that line, a jury

may   rely   on    presence,    association,        and   “evasive    and   erratic

behavior”.    United States v. White, 219 F.3d 442, 445 (5th Cir.

2000) (citation and quotation marks omitted).

      The evidence was sufficient for a rational juror to find each

element of the offense beyond a reasonable doubt.                 The Government

presented    adequate     evidence      of    a   drug-trafficking      conspiracy

between Memo, Garcia, and Ceballos (who, inter alia, accompanied

Memo when he gave the CI the second load of cocaine in Phoenix),

the existence of which Gonzalez does not dispute.                    Regarding his

knowledge and participation, there was testimony establishing,

inter alia:       before the controlled delivery, Gonzalez drove slowly

around the site and appeared to be conducting counter-surveillance;

Gonzalez’ cell phone reflected calls either made to, or received

from,   Garcia      shortly    before   the       delivery;   Gonzalez      followed

Garcia’s vehicle both to, and from, the delivery site, parking

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behind it during the delivery; upon law-enforcement engaging their

emergency lights and sirens to effectuate a stop and arrest,

Gonzalez did not stop, but entered the lane of a pursuing Agent to

either slow him down or force him off the road; Gonzalez’ vehicle

contained, inter alia, a checkbook in Ceballos’ name and bags of

rubber bands resembling those used to bundle the money given to the

CI; and, upon their arrest, Gonzalez, Garcia, and Ceballos admitted

to being affiliated with the same gang.

                               III.

     For the foregoing reasons, the judgment is

                                                      AFFIRMED.




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