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

                                                FILED
                                                                  July 16, 2009
                                No. 08-41099
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

STEVE RODRIGUEZ MELENDEZ,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 4:07-CR-157-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Steve Rodriguez Melendez appeals his jury trial conviction and 121-month
sentence imposed for conspiracy to possess with intent to manufacture and
distribute methamphetamine. Melendez argues that the record contained no
evidence that showed that he agreed to become a member of the conspiracy and
that his conviction resulted in a miscarriage of justice.




      *
       Pursuant to Fifth Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Fifth Circuit Rule 47.5.4.
                                  No. 08-41099

      Because Melendez did not renew his motion for a judgment of acquittal
following the close of the evidence, he must show that the trial record was devoid
of evidence of his guilt and, thus, that his conviction resulted in a manifest
miscarriage of justice. United States v. Avants, 367 F.3d 433, 449 (5th Cir.
2004).
      A review of the record reflects that it was not devoid of evidence. The
record reflects that Melendez agreed to participate in the conspiracy to
distribute the methamphetamine and that he participated by storing and
transporting the methamphetamine intended for sale and distribution. The
evidence reflects that Melendez left an apartment carrying a Nike box and that
he subsequently disposed of the box because it contained one pound of
methamphetamine. The jury apparently found Melendez’s testimony that he left
the apartment only with a gun in the Nike box not to be credible. This finding
was plausible in light of the testimony that coconspirator Placido Medina-
Gonzalez believed that he was receiving a pound of methamphetamine through
his nephew, Jose Hernandez’s, contact and the testimony of Hernandez that he
and Danny Melendez went to the apartment for the specific purpose of picking
up the drugs for the intended sale. The jury could have found based on the
evidence that it was unlikely that Danny Melendez would have taken the risk
and further delayed the delivery to pick up Steve Melendez at the apartment if
the drugs were already in the car. The jury also apparently rejected Steve
Melendez’s story that he believed the purpose of the trip was to go out to eat and
that he had no knowledge of the presence of the drugs until after Danny
Melendez decided to cancel the sale. In light of the evidence presented and
giving the jury’s credibility findings the deference to which they are entitled, the
finding of guilt did not result in a manifest miscarriage of justice. See United
States v. Mata, 491 F.3d 237, 242 (5th Cir. 2007); Avants, 367 F.3d at 449. The
conviction is affirmed.



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                                      No. 08-41099

       Next, Melendez argues that the district court erred by failing to grant a
“downward department adjustment” based on his minor or minimal role in the
offense and asserts for the first time on appeal that the sentence was not
reasonable. “It is not enough that a defendant does less than other participants;
in order to qualify as a minor participant, a defendant must have been
peripheral to the advancement of the illicit activity.”                United States v.
Villanueva, 408 F.3d 193, 204 (5th Cir. 2005) (quotation marks omitted). For
purposes of U.S.S.G. § 3B1.2, a defendant’s participation in the offense is not to
be evaluated with reference to the entire criminal enterprise of which the
defendant was a part but in relation to the conduct for which the defendant was
held accountable. United States v. Garcia, 242 F.3d 593, 598–99 (5th Cir. 2001).
If a sentence is based on activity in which a defendant was actually involved,
§ 3B1.2 does not require a reduction in the base offense level even though the
defendant’s activity in a larger conspiracy may have been minor. United States
v. Atanda, 60 F.3d 196, 199 (5th Cir. 1995).
       The jury held Melendez accountable for only the one pound of
methamphetamine that Danny Melendez agreed to deliver. There was plausible
evidence that Melendez stored that methamphetamine and that he assisted in
its attempted transportation to the intended buyer. Steve Melendez’s part in
that aspect of the drug conspiracy was not peripheral to its advancement.
Therefore, the district court did not clearly err in determining that Steve
Melendez was not a minor or minimal player in the criminal activity and in
refusing to make an adjustment on that basis.1 The sentence is affirmed.
       CONVICTION AND SENTENCE AFFIRMED.




       1
        Melendez states in passing that his sentence is unreasonable, but he does so in the
context of the § 3B1.2 adjustment and he does not present any other argument why the
sentence is unreasonable. Thus, having rejected his contentions regarding § 3B1.2, we do not
undertake a separate reasonableness analysis.

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