     Case: 17-40441      Document: 00514400937         Page: 1    Date Filed: 03/26/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 17-40441
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                      March 26, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

KENNETH MARTIN, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:16-CR-19-5


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Kenneth Martin, Jr., appeals his jury trial conviction for conspiracy to
possess with intent to distribute a controlled substance, namely 50 grams or
more of actual methamphetamine (meth). The district court sentenced Martin
to 115 months in prison to be followed by seven years of supervised release.
Martin argues that the evidence was insufficient to sustain his conviction. He
further argues that the district court erred in giving the jury an instruction on


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40441     Document: 00514400937     Page: 2   Date Filed: 03/26/2018


                                  No. 17-40441

aiding and abetting and that the aiding and abetting instruction constructively
amended his indictment.
      The parties dispute the standard of review pertaining to Martin’s
sufficiency of the evidence claim.      We need not decide whether Martin
adequately preserved his objection because his argument fails even under the
more strict standard of review for preserved challenges.
      Preserved challenges to the sufficiency of the evidence are reviewed de
novo, see United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012), which
requires us to consider the evidence presented in the light most favorable to
the Government to determine whether a rational trier of fact could have found
the essential elements of the crimes beyond a reasonable doubt, see United
States v. Lopez-Moreno, 420 F.3d 420, 437-438 (5th Cir. 2005). Martin does not
dispute the existence of a conspiracy or that the members agreed to possess a
quantity of actual meth with the intent to distribute; accordingly, he has
abandoned those issues. See United States v. Harrison, 777 F.3d 227, 236 (5th
Cir. 2015).
      Martin does argue, however, that the evidence was insufficient for the
jury to conclude that he knew about and willfully participated in the
conspiracy. Britni Martin, an admitted member of the conspiracy, expressly
identified Martin as a participant. Her testimony, alone, was sufficient to
support Martin’s conviction. See, e.g., United States v. Garcia Abrego, 141 F.3d
142, 155-56 (5th Cir. 1998) (concluding that a conspiracy conviction may be
sustained by even the uncorroborated testimony of a co-conspirator, so long as
the testimony is “not incredible as a matter of law”); United States v. Bermea,
30 F.3d 1539, 1552 (5th Cir. 1994) (same, “even if the [co-conspirator] witness
is interested due to a plea bargain or promise of leniency, unless the testimony
is incredible or insubstantial on its face”). To the extent that Martin insinuates



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                                 No. 17-40441

that Britni’s testimony was not credible, we do not evaluate the weight of the
evidence or the credibility of the witnesses, United States v. Delgado, 256 F.3d
264, 273-74 (5th Cir. 2001), because these issues remain within the purview of
the jury, Grant, 683 F.3d at 642.         Furthermore, Britni’s testimony was
corroborated by testimony from law enforcement officials, including an officer
who heard Martin spontaneously admit to being the owner of a distributable
amount of meth found under the hood of a co-conspirator’s car.
       Given that the existence of the drug conspiracy is undisputed, Martin’s
concerted actions with other known members of the conspiracy rose to a level
of more than just mere association or mere presence in an unsavory
atmosphere.     See Garcia Abrego, 141 F.3d at 155.        When the evidence is
considered in the light most favorable to the verdict, the jury reasonably
concluded that Martin was guilty beyond a reasonable doubt of conspiracy to
possess with intent to distribute a controlled substance. See United States v.
Mitchell, 484 F.3d 762, 769-71 (5th Cir. 2007); Lopez-Moreno, 420 F.3d at 437-
38.
       Martin concedes that his argument that the district court erred in giving
the jury an aiding and abetting instruction because aiding and abetting was
not charged in the indictment is foreclosed by current circuit precedent. See
United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980). He raises the issue
to preserve it for possible future review. By failing to adequately brief the
issue, Martin has waived his argument that the aiding and abetting
instruction constructively amended his indictment.          See FED. R. APP. P.
28(a)(8)(A); Harrison, 777 F.3d at 236.
       AFFIRMED.




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