                    UNITED STATES COURT OF APPEALS

                         For the Fifth Circuit



                            No. 94-60114

                           Summary Calendar


                      UNITED STATES OF AMERICA,

                                                  Appellee,


                                VERSUS


                       HOMERO ALANIZ - ALANIZ,

                                                  Defendant-Appellant.




             Appeal from the United States District Court
                  for the Southern District of Texas
                         ( November 14, 1994 )



Before WISDOM, KING, and GARWOOD, Circuit Judges.


WISDOM, Circuit Judge.


     Today we review the district court's revocation of a period of


supervised release and imposition of a mandatory jail term.       The


court based its decision on a finding that the petitioner violated


a standard condition of supervised release by conspiring to possess


marihuana.    Because we hold that the district court was correct in
its assessment of the evidence, including its admissibility, we


AFFIRM.


                                  I.


     On August 1, 1988, Homero Alaniz-Alaniz (Alaniz) pleaded


guilty to possession with intent to distribute approximately 390


grams of cocaine. The district court sentenced Alaniz to 46 months


in prison, followed by a four year term of supervised release.


     Alaniz's term of supervised release commenced on October 7th,


1991.   On July 1, 1993, a United States Probation Officer filed a


petition for action on a term of supervised release, alleging that


Alaniz violated a condition of his release by conspiring to possess


marihuana.1   The petition alleged that on May 17, 1993, Alaniz was


arrested   near   a   farm   in   Coldwater,   Michigan,   and   that,


subsequently, law enforcement officials found approximately 1600



    1
        The petition further alleged that Alaniz violated standard
conditions of his release by leaving the judicial district without
the permission of his probation officer; by possessing and
distributing marihuana; by being in a place where marihuana was
sold; by associating with individuals who were involved in criminal
activity and with a person, Rolando Longoria, who had been
convicted of a felony; and by failing to notify his probation
officer within 72 hours of his arrest.

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pounds of marihuana on and around the premises.


     Thereafter,   on   November   22,   1993,   the   probation   office


informed the court that the United States attorney for the Western


District of Michigan had moved to dismiss the drug charges against


Alaniz and that the district court had granted the motion.            The


motion explained that the government believed that Alaniz was not


involved in the conspiracy charged in the indictment, but rather,


that he was involved in a conspiracy to possess a smaller amount of


marihuana.


     At a December 16, 1993, hearing on the petition, Alaniz


admitted violating certain conditions of his release; however, the


district court ordered an additional hearing with regard to the


alleged conspiracy.2    The probation officer subsequently filed an


amended petition with respect to that violation.           The petition


alleged that on May 16th and 17th, 1993, Alaniz conspired to


smuggle 50 pounds of marihuana from Roma, Texas, to Coldwater,


    2
     Alaniz admitted to leaving the judicial district without the
permission of his probation officer, and also to failing to notify
his probation officer within 72 hours of his arrest.

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Michigan, with the intent to distribute it.


          The court found that Alaniz conspired to possess marihuana and


sentenced Alaniz to 16 months in prison.          This appeal followed.


                                      II.


          This court reviews the factual findings of the district court


for       "clear   error."3    The   district   court's   application   and


interpretation of the Sentencing Guidelines are matters of law


subject to de novo review.4


                                     III.


          Alaniz asserts arguments concerning both the quality and the


quantity of the evidence offered against him.


                        A. Credibility of the Evidence


          As to the quality of the evidence, Alaniz contends that the


testimony of the government's sole witness in the revocation


proceedings was vacillating, contradictory, and wholly unreliable.


      3
       United States v. Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir.
1993).   A factual finding is clearly erroneous if it is not
plausible in light of the record taken as a whole. See Anderson v.
City Of Bessemer City, 470 U.S. 564, 573-76 (1985).
          4
              Montoya-Ortiz, 7 F.3d at 1179.

                                       4
We need not examine this issue.


     The government submitted the affidavit of Rolando G. Longoria


to support the charge that Alaniz conspired to possess marihuana.


     At the hearing, Longoria testified that he travelled with his


father (Longoria Sr.) and Alaniz from Texas to Michigan.               The


Longorias met Alaniz in Rio Grande, followed him to another home,


and met two other people.         The Longorias and Alaniz travelled


together,   and   the   other   couple   drove   a   grey   van.   Longoria


testified that at some point, the vehicles were separated.


     Longoria further testified that the police stopped his vehicle


in Illinois. While they were stopped, a police dog alerted causing


the officers to the possibility of contraband and they searched the


vehicle.    Longoria testified that both his father and Alaniz got


"kind of nervous", and that when he asked his father what was


wrong, his father replied that "they had 50 pounds in the van."         In


response to questions from the prosecutor, Longoria clarified that


"50 pounds" referred to marihuana and that "they" referred to his


father and Alaniz.      The court then asked whether Longoria Sr. (the

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witness's father) had stated specifically that "Homero [Alaniz] and


I have 50 pounds."      The following exchange took place between the


court and Longoria:


      THE COURT:     He mentioned Homero Alaniz's name?

      THE WITNESS:    Yes, he did.

     THE COURT:      And how was -- why [sic] was it that he said
  exactly?

     THE WITNESS: He goes, have you -- he asked me if I had seen
  the gray van and I asked why. And he goes, well, because we
  have 50 pounds in the van.

     THE COURT:      But, the question remains, did he mention Homero
  Alaniz--

      THE WITNESS:    Yes, he did.

      THE COURT:     --or he said we and you assumed--

     THE WITNESS: No, no, he didn't say we, he said me and Homero
  have 50 pounds in the van.


      Longoria testified that after the search of the vehicle, they


were released and continued to Coldwater.            Upon their arrival,


Jesse Villasenor informed Alaniz that his people in the gray van


had been calling.      Villasenor and Alaniz then left the house and


the raid occurred thirty minutes later.         Longoria testified that


his   father   had    been   convicted   on   two   prior   occasions   for


"importing/exporting marijuana," and that his father currently was



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incarcerated in Oklahoma. On cross examination, Longoria testified


that he did not hear his father and Alaniz discuss marihuana at


all.       The only marihuana he saw was a "joint" that he saw his


father smoke.      He testified that he did not see any marihuana in


the van, and that the police never picked up either the van or the


alleged "50 pounds".


       Based on this testimony, the court found that Alaniz had


violated standard condition number one of his supervised release by


knowingly and intentionally conspiring with Longoria Sr. to possess


marihuana with the intent to distribute it.


       It is not this Court's function to pass on a district court's


determination regarding the credibility of the witness.5       We may


find testimony to be "incredible as a matter of law," if the


witness testifies to facts that he "physically could not have


observed or events that could not have occurred under the laws of


nature."6     Short of that, we exercise great deference to a district


       5
           See U.S. v. Gadison, 8 F.3d 186, 189-90 (5th Cir. 1993).
       6
           Id. at 190.

                                    7
court's credibility findings.     Longoria was present on the trip to


Michigan, so it is entirely possible that he had the conversation


to which he testifies.     Further, such a conversation is entirely


possible under the laws of nature.     Hence, we defer to the judgment


of the district court that Longoria's testimony was credible.


                 B. Admissibility of Hearsay Testimony


        Alaniz attacks the quality of the evidence from another angle


as well.     Alaniz asserts that because Longoria's testimony lacked


credibility, such hearsay testimony should not have been admitted


because it was not sufficiently reliable.       "[C]ourts considering


the admissibility of hearsay in revocation proceedings have adopted


an approach which balances the [releasee's] interest in confronting


a particular witness against the government's good cause for


denying it, particularly focusing on the indicia of reliability of


a given hearsay statement."7    The district judge did not apply this


balancing test, however, because Alaniz failed to object to this



    7
       United States v. Kindred, 918 F.2d 485, 486 (5th Cir. 1990)
(internal quotations omitted).

                                   8
testimony on hearsay grounds.8


      Where a defendant in a criminal case has forfeited an error by


failing to object, this court may remedy the error only in the most


exceptional cases.9      The Supreme Court has instructed that in such


an exceptional case, the defendant has the burden to show that


there is clear or obvious error and that it affects substantial


rights.10 Further, even when the appellant has carried that burden,


"Rule 52(b) is permissive, not mandatory.              If the forfeited error


is 'plain' and 'affects substantial rights', the Court of Appeals


has authority to order correction, but is not required to do so."11


As   the    Supreme   Court   stated   in   Olano,12    it   is   the   standard


articulated in United States v. Atkinson that should guide the


      8
       Although the district court did not explicitly engage in
this balancing test, it did find the testimony of Longoria to be
sufficiently 'credible' to support the government's charge.
Implicit in that finding is that the court credits the testimony as
reliable.
      9
           United States v. Rodriguez, 15 F.3d 408, 414 (5th Cir.
1994).
      10
           United States v. Olano, ___ U.S. ___, 123 L. Ed. 2d 508
(1993).
      11
           Id. at __ __, 123 L. Ed. 2d at 520.
      12
           Id. at ___ ___, 123 L. Ed. 2d at 521.

                                       9
application of Rule 52(b).         To wit, the Court of Appeals should


correct a plain error that affects substantial rights only if the


error     "seriously   affect[s]   the    fairness,   integrity   or   public


reputation     of   judicial   proceedings."13        Thus,   this     Court's


discretion to correct an error pursuant to Rule 52(b) is narrow.14


     Guided by the Atkinson standard, we decline to review Alaniz's


challenge to the admissibility of Longoria's testimony on hearsay


grounds.15 Even assuming "error" that is "plain", Alaniz has failed


to show that the district court violated his "substantial rights"


by relying on the testimony.


                       C. Sufficiency of the Evidence


     As to the quantity of the evidence, Alaniz maintains that


Longoria's testimony (being the only testimony) was insufficient to


support the district court's finding that Alaniz conspired with


     13
          United States v. Atkinson, 297 U.S. 157, 160 (1936).
     14
          Rodriguez, 15 F.3d at 416-17.
     15
        See also United States v. Vontsteen, 950 F.2d 1086, 1090
(5th Cir.) (en banc), cert. denied, 120 L. Ed. 2d 908 (1992)
(quoting Wayne R. LaFave and Jerold H. Israel, 3 Criminal Procedure
§ 26.5 at 251-52 (West 1984) (footnote omitted)) (discussing "many
rationales for the raise-or-waive rule").

                                     10
Longoria Sr. to possess 50 pounds of marihuana with the intent to


distribute it.


     In considering Alaniz's challenge to the sufficiency of the


evidence, this Court "must view the evidence and all reasonable


inferences that may be drawn from the evidence in a light most


favorable to the government."16         In fulfilling his task as fact-


finder, the judge is "free to choose among reasonable constructions


of the evidence".17        The evidence is sufficient if a reasonable


trier of fact could reach the conclusion being challenged.18


     At a revocation proceeding, the government has the burden of


proving, by a preponderance of the evidence, that the releasee


committed       the   charged   violation.19   The   instant   violation,


conspiracy to possess with the intent to distribute marihuana,


involves three elements: (1) an agreement to possess with intent to


     16
        United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th
Cir.), reh'g denied, 783 F.2d 1260 (1986).
    17
        United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en
banc), aff'd., 462 U.S. 356 (1983).
     18
          Id.
    19
          United States v. Montez, 952 F.2d 854, 859 (5th Cir. 1992).

                                      11
distribute   marihuana;    (2)   the     defendant's    knowledge     of    the


agreement; and (3) the defendant's voluntary participation.20                A


conviction   for   "drug   conspiracy      does   not   require     proof    of


possession or any other overt act."21


     A cursory canvas of the facts makes it apparent that the


district court was justified in its conclusion that the government


carried its burden.   Accordingly, we again defer to the judgement


of the district court.


                                   IV.


     Since we agree with the district court and its determinations


regarding the evidence presented at the revocation hearing, we


AFFIRM.




     20
        United States v. Martinez, 975 F.2d 159, 160-61 (5th Cir.
1992), cert. denied, 113 S.Ct. 1346 (1993).
     21
        United States v. Lee, 622 F.2d 787, 790 (5th Cir.), cert.
denied, 451 U.S. 913 (1981).

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