                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 18, 2005

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-60654
                          Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

ELVIN L. ATLAS, also known as Sealed Defendant 5,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                    USDC No. 3:03-CR-66-WNO-5
                       --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Elvin L. Atlas was convicted by a jury of conspiracy to

distribute cocaine and marijuana and of using a communications

facility, a telephone, to commit, cause, or facilitate the

conspiracy.    Atlas argues that the evidence is insufficient to

support his convictions because it did not show that he entered

into a conspiracy.    In reviewing a claim of insufficient

evidence, this court views the evidence, in the light most

favorable to the verdict, to determine if a rational trier of


     *
       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this opinion should not be published and is not precedent except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. 04-60654
                                 -2-

fact could have found that the evidence established the essential

elements of the offense beyond a reasonable doubt.    United States

v. Romero-Cruz, 201 F.3d 374, 378 (5th Cir. 2000).   The testimony

of Brown’s codefendant was sufficient to show that Atlas joined

in the conspiracy’s ultimate purpose of distributing drugs.

United States v. Thomas, 12 F.3d 1350, 1365 (5th Cir. 1994);

United States v. Puig-Infante, 19 F.3d 929, 936 (5th Cir. 1994).

Atlas does not dispute that the telephone system was used in

connection with the offense.    The evidence presented at trial was

sufficient to support Atlas’s convictions.

     Atlas challenges the instructions and verdict form given to

the jury.   Atlas does not show that the jury charge or verdict

form, considered as a whole and in the full context of the trial,

were inadequate or erroneous.    United States v. Allred, 867 F.2d

856, 868 (5th Cir. 1989).

     Atlas argues that the district court was clearly erroneous

in determining the amount of cocaine and marijuana that were

relevant to the conspiracy offense.   A district court’s findings

of fact, including its findings concerning the amount of drugs

for which a defendant should be held responsible, are reviewed

for clear error.   United States v. Posada-Rios, 158 F.3d 832, 878

(5th Cir. 1998).   The district court may hold a defendant

accountable for unconsummated transactions.   Atlas does not argue

that he was not capable of taking delivery of the planned but

uncompleted transaction involving 10 kilos of cocaine, rather he
                           No. 04-60654
                                -3-

argues that the testimony of his codefendant was not sufficient

to prove that he engaged in the conspiracy.    The codefendant’s

testimony was viewed as credible by the jury, and Atlas has not

shown that the district court clearly erred in relying on that

same testimony at sentencing.

     Atlas makes a vague and unsupported argument that his

sentence should be vacated under United States v. Booker, 125 S.

Ct. 738 (2005).   Atlas does not suggest that the district court

committed fundamental error by sentencing him under the mistaken

belief that the guidelines were mandatory.    Atlas does not

maintain that the sentencing increase based on relevant conduct

applied by the district court is impermissible because it was

based upon facts not admitted by him during his guilty plea or

not found beyond a reasonable doubt by a jury.    Nor can he

because the jury did make findings as to the amount of narcotics

for which he was responsible.   In any event, this pro forma

argument is insufficient under FED. R. APP. P. 28 and is deemed

waived.   Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

     AFFIRMED.
