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

                                                 FILED
                                                                            July 28, 2009
                                     No. 08-61023
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

LUPE MARTINEZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 1:08-CR-5-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Lupe Martinez was convicted by a jury of conspiracy to possess with intent
to distribute five grams or more of actual methamphetamine and of possession
with intent to distribute five grams or more of actual methamphetamine. The
district court varied upward from the Guidelines in sentencing Martinez to
concurrent 240-month terms of imprisonment and to concurrent five-year
periods of supervised release.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-61023

      Martinez contends in this appeal that the district court erred by admitting
into evidence transcripts of inaudible and unintelligible digital recordings. This
contention is without merit. Evidence was presented regarding the accuracy of
the transcripts and the jury was instructed about the recordings and the
transcripts in accordance with this circuit’s pattern jury instruction. See United
States v. Booker, 334 F.3d 406, 412 (5th Cir. 2003). The district court did not
abuse its discretion in admitting the transcripts. Id.
      Martinez contends that the district court erred in denying his motions for
a judgment of acquittal. The evidence, viewed in the light most favorable to the
verdict, was sufficient to enable a reasonable juror to determine beyond a
reasonable doubt that Martinez’s conduct satisfied all of the elements of the
drug-conspiracy count and the three drug-possession counts. See United States
v. Pruneda-Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992); see also United States
v. Garza, 990 F.2d 171, 174 (5th Cir. 1993); United States v. Maltos, 985 F.2d
743, 746 (5th Cir. 1992).    Martinez’s arguments to the contrary are based
primarily on his own testimony.
      Martinez complains that his sentence was enhanced improperly and in
violation of the Sixth Amendment on the basis of uncharged conduct found by
the district court under a preponderance of the evidence standard.              A
“sentencing judge is entitled to find by a preponderance of the evidence all the
facts relevant to the determination of a Guideline sentencing range and all facts
relevant to the determination of a non-Guidelines sentence.” United States v.
Johnson, 445 F.3d 793, 798 (5th Cir. 2006) (quotation marks omitted).
      Martinez argues that the district court abused its discretion in varying
upward from the Guidelines because his case is a “typical heartland type of
case.” He contends that his sentence is “extremely harsh compared to the actual
crime that was committed.” Because Martinez did not object contemporaneously
to the reasonableness of the sentence, we review these arguments for plain error.



                                        2
                                   No. 08-61023

See United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied,
128 S. Ct. 2959 (2008).
      The district court gave a detailed explanation of its reasons for varying
upward from the guidelines range. We defer to the district court’s determination
that its variance is justified by application of the 18 U.S.C. § 3553(a) factors. See
Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. Williams, 517
F.3d 801, 808-13 (5th Cir. 2008). The district court did not plainly err by
imposing an unreasonable sentence.        See Peltier, 505 F.3d at 391-92.      The
judgment is
      AFFIRMED.




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