     Case: 16-40008      Document: 00513745081         Page: 1    Date Filed: 11/03/2016




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


                                    No. 16-40008                            FILED
                                  Summary Calendar                  November 3, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARVIN LEWAYNE MOODY, also known as Spain,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-248-4


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Marvin Lewayne Moody appeals his convictions for conspiracy to possess
with intent to distribute heroin, conspiracy to possess with intent to distribute
cocaine, and possession of a firearm in furtherance of a drug trafficking crime.
He contends that (1) venue was not proper in the Eastern District of Texas;
(2) there is insufficient evidence to support his convictions; (3) he received
ineffective assistance of counsel; and (4) there was a material variance between


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-40008

the number of conspiracies charged and proven. Finding no merit to Moody’s
contentions, we affirm.
      Moody argues that venue was improper in the Eastern District of Texas
because he did not live there, did not receive drugs from a source there, did not
conduct conspiracy business there, and did not visit the district during the
course of the conspiracy. Rather, he asserts that the Government attempted
to improperly manufacture venue by luring him from St. Louis to the Eastern
District through unindicted-co-conspirator-turned-informant Raphael Risher,
who was Moody’s primary heroin and cocaine supplier.
      The Government argues that we should not address the venue challenge
because Moody failed to raise the issue in the district court. Under Federal
Rule of Criminal Procedure 12(b)(3), venue challenges must be raised by the
time of trial; under a 2014 amendment to that rule, “a court” is allowed to
consider an untimely venue challenge for “good cause.”         FED. R. CRIM. P.
12(c)(3). We need not reach the question of whether such good cause must be
shown in the district court or whether this issue can be raised for the first time
on appeal because, assuming arguendo Moody can raise an untimely challenge
to venue on appeal, his challenge lacks merit.
      “In cases involving conspiracy offenses, venue is proper in any district
where the agreement was formed or an overt act occurred.” United States v.
Garcia Mendoza, 587 F.3d 682, 686 (5th Cir. 2009) (internal quotation marks
and citation omitted). A finding of proper venue may be predicated on evidence
of “any single act that initiated, perpetuated, or completed the crime.” Id. The
record establishes a number of overt acts occurring in the Eastern District that
perpetuated the charged heroin and cocaine distribution conspiracy, including
meetings between conspiracy members and undercover federal agents posing
as drug suppliers, a staged buy-and-bust, the transporting of heroin and



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                                 No. 16-40008

cocaine through the district, and the delivery of a half kilogram of heroin to
Risher by fellow conspirator Willy Jackson. Any one of those acts sufficed to
make venue in the Eastern District proper. See Garcia Mendoza, 587 F.3d at
686-87; United States v. Marable, 574 F.2d 224, 230 (5th Cir. 1978). That
Moody never personally set foot in the Eastern District is of no moment. See
United States v. Rodriguez-Lopez, 756 F.3d 422, 430 (5th Cir. 2014). Moreover,
this court has not recognized the concept of “manufactured venue.” Cf. United
States v. Al-Talib, 55 F.3d 923, 929 (4th Cir. 1995).         In any event, his
arguments do not support such a claim. The record establishes, by at least a
preponderance of the evidence, that venue for Moody’s prosecution was
properly in the Eastern District of Texas. See Rodriguez-Lopez, 756 F.3d at
430. Accordingly, there was no basis for dismissing the case for improper
venue.
      Moody next contends that the evidence adduced at his trial was legally
insufficient to support his convictions. Because Moody failed to timely object
to the insufficiency of the evidence, we review for plain error and will reverse
only if there is a manifest miscarriage of justice. See United States v. Delgado,
672 F.3d 320, 330-31 (5th Cir. 2012) (en banc). Under that standard, we may
reverse Moody’s convictions only if “the record is devoid of evidence pointing to
guilt or contains evidence on a key element of the offense that is so tenuous
that a conviction would be shocking.” Id. at 331 (internal quotation marks,
citation, and emphasis omitted). We consider the evidence in the light most
favorable to the verdict, giving the Government the benefit of all reasonable
inferences and credibility choices. Id. at 332.
      First, Moody contends that the evidence fails to prove that he possessed
the modified AR-15 rifle found in his bedroom during his arrest “in furtherance
of” a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). The trial testimony,



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however, established that Moody conducted large-scale heroin and cocaine
transactions in the house where he kept the rifle; that the rifle was readily
accessible; that it had been modified in order to make loading and firing more
efficient; that Moody could not lawfully possess such a rifle because he had
previous felony convictions; that Moody had failed to register the rifle despite
its having a barrel less than 16 inches in length; that the rifle was loaded with
a full magazine at the time of Moody’s arrest; and that it was located in close
proximity to narcotics hidden under Moody’s bed and also to possible cash
proceeds from drug sales. See United States v. Ceballos-Torres, 218 F.3d 409,
414-15 (5th Cir. 2000); United States v. Holley, 831 F.3d 322, 329-30 (5th Cir.
2016). Therefore, the record is not devoid of evidence supporting Moody’s
conviction for possessing a firearm in furtherance of a drug trafficking offense,
and the resulting verdict was not a manifest miscarriage of justice.         See
Delgado, 672 F.3d at 331.
      Second, Moody argues that the evidence fails to establish that he was
part of a conspiracy to distribute cocaine because no cocaine was actually
seized during the investigation. This argument is misplaced; the crime of
conspiracy to possess a controlled substance does not require actual possession
of the controlled substance. See United States v. Ballard, 586 F.2d 1060, 1066
(5th Cir. 1978).     Rather, “[t]he crime of conspiracy is complete upon the
formation of the illegal agreement.” United States v. Pietri, 683 F.2d 877, 879
(5th Cir. 1982). To that end, recorded phone conversations between Moody and
Risher showed the existence of an agreement to distribute cocaine for profit.
See United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998). Testimony
from multiple witnesses further established that Moody and others knowingly
and voluntarily joined the illegal agreement. See id. Moody received several
large shipments of cocaine from Risher, via Jackson, which he then distributed



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to users in St. Louis through a network of dealers.           In exchange, Risher
received cash payments from Moody, which he directed to Alex Gonzalez in
order to obtain more cocaine. The record, therefore, is not devoid of evidence
supporting Moody’s conviction for conspiracy to possess with intent to
distribute cocaine, and the resulting verdict was not a manifest miscarriage of
justice. See Delgado, 672 F.3d at 331.
      Much of the same evidence supporting the verdict on the cocaine
conspiracy charge also supports Moody’s conviction for conspiracy to possess
with intent to distribute heroin. Moody, however, argues that Risher’s and
Jackson’s trial testimony tying him to the heroin conspiracy should have been
disregarded by the jury as incredible because their assertions that Jackson, on
one occasion, witnessed Moody mix poor quality heroin with fentanyl were
contradicted by forensic testing showing the heroin in question to be
unadulterated. This is important, Moody contends, because it suggests that
Risher and Jackson “manufactured” evidence linking him to the conspiracy.
Moody mischaracterizes the relevant testimony; neither witness claimed that
Jackson had observed Moody mixing fentanyl and heroin. 1               Risher’s and
Jackson’s testimony was not incredible, and the jury could rely on it in
determining Moody’s guilt. See United States v. White, 219 F.3d 442, 448 (5th
Cir. 2000). As Moody does not contend that the record is otherwise devoid of
evidence supporting his conviction for conspiracy to possess with intent to
distribute heroin, he fails to show that the resulting verdict was a manifest
miscarriage of justice. See Delgado, 672 F.3d at 331.
      Next, Moody asserts that his trial counsel was ineffective for failing to


      1   Instead, the testimony was that Jackson actually observed Moody scooping a
substance from a canister into the package he gave Jackson to take back to Texas. By
contrast, the fentanyl conversation was a telephone discussion about using fentanyl to
improve heroin potency.


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                                  No. 16-40008

move for a judgment of acquittal on the firearm charge after the close of the
Government’s case and failing to reurge a motion for acquittal on the
conspiracy charges at the close of all evidence. We generally will not consider
the merits of an ineffective assistance of counsel claim on direct appeal, see
United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014), although we may do
so “in rare cases in which the record allows [us] to fairly evaluate the merits of
the claim,” Massaro v. United States, 538 U.S. 500, 503-09 (2003) (internal
quotation marks and citation omitted).        We decline to consider Moody’s
ineffective assistance claim at this time, without prejudice to his ability to
reurge it on collateral review, which is the preferred avenue. See id.; United
States v. Freeze, 707 F.2d 132, 139 (5th Cir. 1983).
      Lastly, Moody contends that a material variance existed because the
trial evidence does not support the jury’s finding that there was a single
conspiracy. See United States v. Mitchell, 484 F.3d 762, 769 (5th Cir. 2007);
United States v. Delgado, 401 F.3d 290, 295 (5th Cir. 2005). Rather, he asserts
that there were four separate conspiracies, two involving heroin and two
involving cocaine, and that he was implicated, at best, in two of them. We need
not determine whether a material variance existed in this case because, even
if it did, the evidence clearly established Moody’s involvement in at least one
of the proved conspiracies. See Mitchell, 484 F.3d at 770. Accordingly, any
variance did not prejudice Moody’s substantial rights. See Delgado, 401 F.3d
at 295.
      The judgment of the district court is AFFIRMED.




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