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United States v. Moore, 99-40018 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-40018 Visitors: 27
Filed: Jan. 12, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 99-40018 Summary Calendar _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus GWENDOLYN CAROL MOORE, also known as Sandra A. Newton, Defendant-Appellant. _ Appeal from the United States District Court for the Eastern District of Texas USDC No. 3:98-CR-3-2 _ January 10, 2000 Before JOLLY, JONES, and BENAVIDES, Circuit Judges. PER CURIAM:* Gwendolyn Carol Moore, also known as Sandra A. Newton, appeals her conviction and sentence,
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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                           _____________________

                                No. 99-40018
                              Summary Calendar
                           _____________________

UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                      versus

GWENDOLYN CAROL MOORE, also
known as Sandra A. Newton,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 3:98-CR-3-2
_________________________________________________________________

                                January 10, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Gwendolyn Carol Moore, also known as Sandra A. Newton, appeals

her conviction and sentence, following a jury trial, for conspiracy

to possess marijuana with intent to distribute, in violation 21

U.S.C.   §   846,   and    possession     of   marijuana   with   intent   to

distribute, in violation of 21 U.S.C. § 841(a)(1).

     The     evidence     was   not    insufficient   to   support   Moore’s

convictions for conspiracy and possession.            See United States v.

El-Zoubi, 
993 F.2d 442
, 445 (5th Cir. 1993); United States v. Cano-

Guel, 
167 F.3d 900
, 904 (5th Cir. 1999); United States v. Bermea,

     *
      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this opinion should not be published and is not precedent except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.

30 F.3d 1539
, 1551 (5th Cir. 1994).             Moore testified that, until

approximately one hour before a state trooper stopped them, she was

completely unaware of the 198.5 pounds of marijuana in the trunk of

the car she was driving, along with a codefendant as passenger.

The jury, however, was entitled to discredit her account of the car

trip, in which she maintained that she had agreed to travel

“straight    through”    from   Ohio       to   Texas    and   back    with   her

codefendant, a man she barely knew, simply because she had recently

had problems in an unspecified romantic relationship and needed to

“get away” from Ohio.      See United States v. Jones, 
185 F.3d 459
,

464 (5th Cir. 1999) (constructive possession of drugs may be shown

by control of vehicle in which drugs are concealed); United States

v. Brito, 
136 F.3d 397
, 411 (5th Cir.) (defendant’s failure to

provide sufficient explanation for long trip to border in car

“escorting” truck containing marijuana entitled jury to reject

defendant’s claim that he was “just along for the ride”), cert.

denied, 
118 S. Ct. 1817
(1998).

     The district court did not clearly err in refusing to grant

Moore   an   offense    level   reduction       for     “minor”   or   “minimal”

participation under U.S.S.G. § 3B1.2. See United States v. Zuniga,

18 F.3d 1254
, 1261 (5th Cir. 1994); United States v. Bethley, 
973 F.2d 396
, 401 (5th Cir. 1992) (a drug courier is not automatically

entitled to a mitigating role reduction).

     The district court did not clearly abuse its discretion in

admitting into evidence Moore’s 1977 Ohio conviction for aggravated




                                       2
drug trafficking.    See United States v. Broussard, 
80 F.3d 1025
,

1039 (5th Cir. 1996).          The district court was authorized to

conclude that such conviction was relevant under FED. R. EVID.

404(b) to show Moore’s state of mind in the instant case and that

the   conviction   was   not   too   remote   in   time   to   be   probative.

See United States v. Beechum, 
582 F.2d 898
, 911 (5th Cir. 1978) (en

banc); United States v. Chavez, 
119 F.3d 342
, 346 (5th Cir.) (use

of 15-year-old conviction), cert. denied, 
118 S. Ct. 615
(1997).

                                                           A F F I R M E D.




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Source:  CourtListener

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