     Case: 10-40718     Document: 00511568781         Page: 1     Date Filed: 08/11/2011




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

                                                                            FILED
                                                                          August 11, 2011
                                     No. 10-40718
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DANIEL JIMENEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-155-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Daniel Jimenez appeals his jury trial conviction and
sentence for conspiracy to possess with intent to distribute five kilograms or
more of cocaine, in violation of 21 U.S.C. § 846. The district court sentenced
Jimenez to a term of life in prison to be followed by ten years of supervised
release. He claims that the evidence was insufficient to sustain the conviction.
        Jimenez moved for a judgment of acquittal at the close of the government’s
case-in-chief, but he failed to renew the motion at the close of all evidence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40718    Document: 00511568781      Page: 2   Date Filed: 08/11/2011

                                  No. 10-40718

Therefore, our review is limited to whether there has been a “manifest
miscarriage of justice,” which occurs only when (1) the record is devoid of
evidence of guilt or (2) the evidence on a key element of the offense is so tenuous
that a conviction would shock the conscience. See United States v. Miller, 576
F.3d 528, 529-30 & n.2 (5th Cir.) (internal citations and quotation marks
omitted), cert. denied, 130 S. Ct. 652 (2009); United States v. Rodriguez-
Martinez, 480 F.3d 303, 307 (5th Cir. 2007).
      Jimenez contends that the evidence was insufficient for the jury to
conclude that he knew about and willfully participated in the conspiracy. At
trial, several admitted members of the conspiracy expressly identified Jimenez
as a participant and offered corroborating testimony about his involvement.
Testifying officials who conducted surveillance on Jimenez interpreted recorded
phone conversations and meetings that suggested his involvement in the
conspiracy. Additionally, an officer who participated in an attempt to purchase
cocaine from Jimenez testified before the jury about her experience.
      As the record contains direct and circumstantial evidence of Jimenez’s
involvement in the drug conspiracy, he has failed to demonstrate that the record
is devoid of evidence of his guilt or that the evidence on a key element of his
offense is so tenuous that his conviction would shock the conscience. See
Rodriguez-Martinez, 480 F.3d at 307; see also United States v. Ramirez-
Velasquez, 322 F.3d 868, 881 (5th Cir. 2003) (affirming conspiracy conviction,
under the ordinary sufficiency standard, where the “aggregation of
circumstances” supported the jury’s verdict). As for Jimenez’s contention that
the government’s case rested on the testimony of co-conspirators who were
cooperating in exchange for reduced sentences, it was within the province of the
jury to determine credibility and the weight of the evidence. See United States
v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004).
      AFFIRMED.



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