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

                                                                            FILED
                                                                         January 30, 2008

                                       No. 06-51477                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

ISMAEL LIRA, TINA MILLS also known as, Tina Lira

                                                  Defendants – Appellants



                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. DR–04–CR–00722


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Ismael and Tina Lira, husband and wife, were convicted in a jury trial for
their roles in a drug-distribution conspiracy. Mr. Lira received a life sentence,
and Ms. Lira received ten years. Both now appeal various aspects of their
convictions and sentences. For the reasons that follow, we affirm.
       1.      Ms. Lira contends that the Government produced insufficient
               evidence to establish her involvement in the conspiracy. When
               reviewing for the sufficiency of the evidence, we must affirm 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-51477

          conviction “if a rational trier of fact could have found that the
          evidence established the essential elements of the offense beyond a
          reasonable doubt.”1
                Viewing the evidence in the light most favorable to the jury’s
          verdict, and drawing all reasonable inferences from the evidence
          that support the verdict,2 there is sufficient evidence in the record
          to support Ms. Lira’s conviction. Gary Hernandez, for example,
          testified about Ms. Lira’s knowledge of, and involvement in, the
          conspiracy. Hernandez placed Ms. Lira at the scene of a large drug
          transaction where Ms. Lira helped him count bundles of marijuana.
          The fact that Ms. Lira actively participated in the counting belies
          her claim on appeal that she was simply present during the
          transactions. Moreover, Hernandez also testified that Ms. Lira was
          present when he and Mr. Lira discussed the conspiracy and that Ms.
          Lira knew what was going on. Ms. Lira responds by trying to cast
          doubt on Hernandez’s credibility, but we must assume the jury
          made credibility determinations that support its verdict,3 and so we
          assume the veracity of his testimony.                 Thus, Hernandez’s
          testimony—along with other evidence in the record linking Ms. Lira
          to various drug transactions—would provide a rational juror a
          sufficient basis to convict Ms. Lira.
2.        Ms. Lira next contends that the district court erred by not severing
          her case from Mr. Lira’s. “The denial of a severance motion will be




1
    United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996).
2
    Id.
3
    Id.

                                         2
                                  No. 06-51477

          reversed only for abuse of discretion, upon a showing of specific and
          compelling prejudice.”4
                 Ms. Lira has not shown that there was an abuse of discretion.
          While many of the witnesses at trial primarily (or solely) discussed
          Mr. Lira, not Ms. Lira, they were both involved in the same
          conspiracy and thus the evidence of Mr. Lira’s activities were
          relevant to Ms. Lira’s guilt or innocence. Moreover, to the extent
          that some of the evidence was relevant only to Mr. Lira, the district
          court instructed the jury to give separate consideration of the
          evidence as to each defendant. Ms. Lira has not shown that she
          suffered the necessary “compelling prejudice” by being tried with
          Mr. Lira.5
3.        Mr. Lira contends that there was insufficient evidence to support
          his conviction under 21 U.S.C. § 848 for being part of a continuing
          criminal enterprise. To sustain its conviction, the Government had
          the burden to prove, among other things, that Mr. Lira obtained
          “substantial income or resources” from his involvement in a
          continuing series of illegal drug transactions.6 The substantial-
          income requirement is met when the Government can show that
          “many thousands of dollars changed hands” and that the defendant
          received “some” of that money.7 Mr. Lira contends that there was
          insufficient evidence to establish that he obtained “substantial




4
    United States v. Erwin, 793 F.2d 656, 665 (5th Cir. 1986).
5
    See id.
6
    United States v. Gonzales, 866 F.2d 781, 784 (5th Cir. 1989) (quoting 21 U.S.C. § 848).
7
    Id.

                                          3
                                        No. 06-51477

                income” from the drug conspiracy and that the phrase is
                unconstitutionally vague.
                       As to his vagueness challenge, circuit precedent forecloses this
                argument.8 As for his sufficiency challenge, the record is replete
                with testimony about Mr. Lira’s involvement in large-scale drug
                transactions worth many thousands of dollars. Moreover, several
                Government witnesses testified that Mr. Lira had several expensive
                vehicles that the jury could infer he purchased with his drug money.
                Thus, a rational juror could conclude from this evidence that Mr.
                Lira received “substantial income” from the drug conspiracy.
       4.       Mr. and Ms. Lira jointly contend that their rights were violated
                because the sentencing judge was not the same as the trial judge.
                Although the Liras frame their complaint at times in terms of a
                violation of their due process rights, their argument is mostly
                couched in terms of whether there was an abuse of discretion when
                there was a substitution of the judge at sentencing.9
                       The Liras cannot show that there was an abuse of discretion.
                The sentencing judge stated on the record that while she did not
                preside over the jury trial, she both studied the sentencing papers
                and reviewed the record to make sure that she had a “full and
                credible understanding of the facts and what happened in the
                particular case.” The judge went on to “assure the parties that [she
                has] definitely learned and made [herself] familiar with this
                particular case . . . .” The Liras contend that they were prejudiced


       8
        United States v. Brito, 136 F.3d 397, 407–08 (5th Cir. 1998) (noting that this court has
already held that section 848 is not unconstitutionally vague and rejecting the defendant’s
vagueness challenge to the term “substantial”).
       9
           Gov’t of Canal Zone v. O’Calagan, 580 F.2d 161, 164–65 (5th Cir. 1978).

                                               4
                                        No. 06-51477

                because the Government allegedly made several statements at the
                sentencing hearing that conflicted with the trial evidence. They
                further contend that the sentencing judge was not able to know this
                as the judge was not there at trial. But defense counsel was able to
                point out these alleged inconsistencies to the sentencing judge. The
                sentencing judge, then, was able to make her own independent
                determination regarding the evidence. The Liras contend that this
                was improper because the determination could only have been made
                by reviewing a cold transcript.          While perhaps this is not the
                preferable practice, it is not per se reversible error, as the Liras
                imply.
      5.        Mr. Lira argues that the district court erred in its factual
                determination at sentencing regarding the amount of drugs that
                could properly be attributed to him. We review such challenges for
                clear error.10
                         Here, the pre-sentence report stated that approximately
                33,000 kilograms of marijuana could be attributed to Mr. Lira. This
                amount was supported by witnesses both at trial and at the
                sentencing hearing. The defendant bears the burden to prove that
                the information in the pre-sentence report is materially false.11 Mr.
                Lira did not meet that burden here.
                         Mr. Lira also asserts for the first time in his reply brief that
                his Guideline sentence was unreasonable. This claim is without
                merit.12

      10
           United States v. Alford, 142 F.3d 825, 831 (5th Cir. 1998).
      11
           Id. at 832.
      12
         See United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006) (noting that within
Guideline sentences are presumptively reasonable and it is the defendant’s burden to rebut

                                               5
                     No. 06-51477

AFFIRMED.




that presumption).

                          6
