     Case: 12-50924      Document: 00512477593         Page: 1    Date Filed: 12/19/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-50924
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 19, 2013
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellee,

v.

OCTAVIOUS WILLIAMS,

                                                 Defendant–Appellant.


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 5:11-CR-402-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Octavious Williams was convicted by a jury of attempted possession with
intent to distribute cocaine and was sentenced to 240 months of imprisonment
and 10 years of supervised release. Williams argues that the evidence was
insufficient to prove that he attempted to possess with intent to distribute five
kilograms or more of cocaine. He contends that the evidence showed that he
discussed the purchase of marijuana with the undercover agent and that he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-50924

only had enough cash in his possession to purchase a little more than two kilos
of cocaine.
      The issue of sufficiency is preserved for appellate review. See United
States v. DeLeon, 247 F.3d 593, 596 n.1 (5th Cir. 2001). This court will uphold
the jury’s verdict if a reasonable trier of fact could conclude from the evidence
that the elements of the offense were established beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979). A review of the sufficiency of
the evidence does not include a review of the weight of the evidence or the
credibility of the witnesses, since such determinations are within the jury’s sole
province. United States v. Myers, 104 F.3d 76, 78-79 (5th Cir. 1997).
      To establish an attempt to possess with intent to distribute, the
Government must prove that (1) the appellant acted with the kind of
culpability required for the crime of possession with intent to distribute and
(2) the appellant engaged in conduct constituting a substantial step toward
commission of the crime. United States v. Redd, 355 F.3d 866, 872-73 (5th Cir.
2003). Possession with intent to distribute requires that the Government
prove “(1) knowing (2) possession of the illicit substance (3) with intent to
distribute it.” United States v. Martinez-Mercado, 888 F.2d 1484, 1491 (5th
Cir. 1989) (citations omitted).
      Williams does not challenge the fact that he was attempting to purchase
a controlled substance.    His argument is that he was attempting to buy
marijuana, not cocaine. He argues that the evidence does not support his
conviction for attempted possession of cocaine because he used a slang term for
marijuana, “mota,” when he met with Agent Rodriguez, and because he did not
bring enough cash to purchase five kilograms or more of cocaine.
      The evidence was sufficient to support the jury’s verdict because the
Government presented testimony and recorded conversations to establish that



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    Case: 12-50924    Document: 00512477593     Page: 3   Date Filed: 12/19/2013


                                 No. 12-50924

Williams was attempting to purchase cocaine. Agent Rodriguez testified that
although Williams initially discussed purchasing marijuana, the discussion
moved to cocaine, and that Williams sought to purchase cocaine.           Agent
Rodriguez’s testimony is corroborated by the fact that Williams brought
$50,000 with him, which is consistent with the price of cocaine at $23,000 per
kilogram, rather than marijuana, which costs approximately $395 a pound, as
testified to by Agent Rodriguez. Agent Rodriguez and Williams discussed the
narcotics to be purchased in terms of kilograms rather than pounds, and Agent
Rodriguez testified that cocaine is sold in kilograms while marijuana is sold in
pounds. The recorded conversation shows that Williams explained to Agent
Rodriguez that he did not have the full amount of money agreed upon because
his partners had backed out. During their conversation, Williams expressed
the concern that the drugs not be diluted or “reconstituted.” Agent Rodriguez
testified that marijuana cannot be diluted, while cocaine is often diluted. The
code or slangs words used by Agent Rodriguez and Williams support the
inference that they were discussing cocaine. In their conversations, Agent
Rodriguez and Williams used the terms “cars” and “birds,” which Agent
Rodriguez and Officer Lacour testified was code or street slang for cocaine. The
jury could reasonably infer that they were referring to cocaine. The evidence
is sufficient to support the jury’s conclusion that Williams was guilty of
attempting to possess with intent to distribute cocaine beyond a reasonable
doubt. See United States v. Resio-Trejo, 45 F.3d 907, 910-11 (5th Cir. 1995).
      AFFIRMED.




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