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

                                                                 FILED
                                                              November 12, 2008
                               No. 07-41101
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

UNITED STATES OF AMERICA

                                         Plaintiff-Appellee

v.

KEVIN ONEAL LEGGETT

                                         Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:07-CR-312-1


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Kevin Oneal Leggett has appealed his jury conviction of two counts of
transportation of illegal aliens by means of a motor vehicle for purpose of
commercial advantage or private financial gain, for which he was sentenced to
concurrent 45-month terms of imprisonment and to concurrent three-year
periods of supervised release.
      The district court excluded from evidence an out-of-court written
statement of Leggett’s codefendant, Roberto Jesus Leal. Leggett contends that

      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-41101

the evidence should have been admitted. The record reflects that the statement
was prepared by Leggett’s wife and was signed by Leal after an altercation
between Leal and Leggett and after Leal was threatened by Leggett with a
baseball bat. The district court did not abuse its discretion in determining that
the circumstances did not corroborate the trustworthiness of the out-of-court
statement. See United States v. Vega, 221 F.3d 789, 803-04 (5th Cir. 2000); FED.
R. EVID. 804(b)(3). Moreover, the record reflects that Leal was available to
testify at trial, but was not called as a witness. See Vega, 221 F.3d at 803
(declarant must be unavailable).
      Nor did the district court abuse its discretion by allowing the Government
to introduce evidence that Leggett had a prior felony conviction. See United
States v. Turner, 960 F.2d 461, 465 (5th Cir. 1992). The district court’s ruling
indicates that it weighed the probative value of the evidence against its
prejudicial effect and admitted the evidence because the fact of the conviction
was relevant to Leggett’s credibility, which was the most important question to
be resolved by the jury. See United States v. Preston, 608 F.2d 626, 639 & n.17
(5th Cir. 1979).
      Leggett contends that he carried his burden of proof with respect to his
justification defense of duress and that the district court abused its discretion
by denying his motion for judgment of acquittal under FED. R. CRIM. P. 29. The
only evidence that Leggett acted under duress was Leggett’s own testimony,
which was internally inconsistent and recounted an implausible story. See
United States v. Mora, 994 F.2d 1129, 1137 (5th Cir. 1993); see also United
States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994) (listing elements of duress
defense). Viewing the evidence in the light most favorable to the verdict, a
rational juror could have discredited Leggett’s testimony. See United States v.
Kay, 513 F.3d 432, 452 (5th Cir. 2007), petition for cert. filed (Apr. 8, 2008) (No.
07-1281).



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                                  No. 07-41101

      With respect to his sentence, Leggett contends that the district court erred
in overruling his objection to the two-level increase in his offense level for
obstruction of justice under U.S.S.G. § 3C1.1 because Leggett perjured himself
during his trial testimony. The district court’s finding that Leggett testified
falsely about conduct that formed the basis of the conviction and that Leggett
intended to mislead the jury in order to obtain an acquittal is plausible in light
of the record as a whole. See United States v. Cisneros-Guiterrez, 517 F.3d 751,
764 (5th Cir. 2008). The judgment is
      AFFIRMED.




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