                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                 UNITED STATES COURT OF APPEALS
                      for the Fifth Circuit                November 29, 2005

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 04-50796



                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              VERSUS


                       RUBIN VICTOR LEAL,

                                                Defendant-Appellant.



          Appeal from the United States District Court
                for the Western District of Texas
                       (2:03-CR-279-2-AML)


Before JONES, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Ruben Victor Leal (“Leal”) appeals the

jury verdict convicting him of (1) one count of conspiring to

commit offenses against the United States; (2) seventeen counts of

making false, fictitious, or fraudulent claims; and (3) two counts

of making false, fictitious, or fraudulent statements or material

misrepresentations. 18 U.S.C. §§ 371, 287, 1001 (2000). Leal also

challenges his sentence.   We AFFIRM.


     *
      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this opinion should not be published and is not precedent except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.
       All of Leal’s convictions stem from his actions as a United

States Postal Service (“USPS”) employee.                     Leal was a Delivery

Service Supervisor in charge of vehicle maintenance and repairs at

the USPS postal facility in Del Rio, Texas.                 The indictment alleged

that Leal conducted a conspiracy and committed subsequent offenses

by    engaging        in     various    improprieties        with    Jose       Hinojosa

(“Hinojosa”), another USPS employee.               Each count involved a scheme

by which Hinojosa and Leal would submit invoices to the USPS that

reflected       charges       for   excessive     labor,     work   not     performed,

unnecessary repairs, or unnecessary parts.

        Leal’s case proceeded to jury trial on twenty-one closely

related counts.            At the close of all the evidence, Leal moved for

a    judgment    of    acquittal       on   all   counts,    pointing      to    alleged

deficiencies in the evidence relating to each count.                      The district

court denied the motion, and the jury later convicted Leal on

twenty of the twenty-one counts. Leal was sentenced to a twenty-

seven-month       term       of     imprisonment    on      each    count,      to   run

concurrently, and a three-year term of supervised release, and he

was ordered to provide restitution in the amount of $3129.85. This

timely appeal followed.

       Leal challenges the sufficiency of the evidence as to all

twenty counts.        In reviewing a challenge to the sufficiency of the

evidence, this Court asks whether a reasonable jury could have

found that the evidence established the essential elements of the



                                             2
crime beyond a reasonable doubt.               United States v. Martinez-Lugo,

411    F.3d   597,   599   (5th    Cir.    2005).        The   evidence,       and   any

reasonable inference that can be drawn from it, is to be considered

in the light most favorable to the jury verdict.                         Id.    “[T]he

evidence      need   not    exclude       every       reasonable       hypothesis     of

innocence,” but a conviction is to be reversed “if the evidence

construed in favor of the verdict gives equal or nearly equal

circumstantial support to a theory of guilt and a theory of

innocence of the crime charged.”              United States v. Miller, 146 F.3d

274, 280 (5th Cir. 1998).          After a thorough review of the briefs,

oral arguments of the parties, and relevant portions of the record,

we conclude that a reasonable jury could have found Leal guilty

beyond a reasonable doubt on each count.

       Leal also challenges his sentence under United States v.

Booker, 125 S. Ct. 738 (2005).                Because we have determined that

Leal did not raise a constitutional challenge to his sentence

below, we review Leal’s sentence under the plain error standard.

See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).                        We

will “correct an error the defendant failed to raise in the

district court” only when “there is (1) error, (2) that is plain,

and (3) that affects substantial rights.”                Id. (internal quotation

marks omitted). Leal points to nothing in the record demonstrating

that    the   district     court   would       have    reached     a    significantly

different result “sentencing under an advisory scheme rather than


                                          3
a mandatory one.”   See id. at 521.   Thus, Leal has not satisfied

the third prong of the plain error test.   See id.

AFFIRMED.




                                4
