USA v. Oscar Tapia

Filing

UNPUBLISHED OPINION FILED. [11-10604 Affirmed ] Judge: RHB , Judge: CES , Judge: ECP Mandate pull date is 03/14/2012 for Appellant Oscar Tapia [11-10604]

Case: 11-10604

Document: 00511764045

Page: 1

Date Filed: 02/22/2012

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

FILED
No. 11-10604
Summary Calendar

February 22, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
OSCAR TAPIA,
Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CR-55-2

Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Oscar Tapia challenges both his jury-trial conviction for conspiracy to
possess, with intent to distribute, methamphetamine, and his sentence of, inter
alia, 235-months’ imprisonment. He contends:

the evidence at trial was

insufficient to support his conviction; and, he was entitled to a minor-role
sentencing adjustment.
Because Tapia did not move at trial for judgment of acquittal, relief may
be granted only for a manifest miscarriage of justice. E.g., United States v.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 11-10604

Document: 00511764045

Page: 2

Date Filed: 02/22/2012

No. 11-10604
Avants, 367 F.3d 433, 449 (5th Cir. 2004). This standard is met only if “the
record [is] devoid of evidence of guilt or the evidence [is] so tenuous that a
conviction is shocking”. Id. Testimony at trial showed: Agents from the Drug
Enforcement Agency arranged to buy, through a confidential informant (CI), a
large quantity of methamphetamine from Sebastian de la Garza and Rogelio
Estrada; Tapia was the supplier of the methamphetamine involved in that
transaction; he arrived with Estrada to complete the deal; at the time of the
deal, Tapia carried a gun that he displayed to the CI and described as protection;
and, he provided security and countersurveillance for the transaction. Tapia has
failed to show either that the record was “devoid of evidence” that he both knew
about and participated in the drug transaction or that such evidence was “so
tenuous” that a conviction would be shocking.
Tapia also contends the court clearly erred in calculating his advisory
Guidelines-sentencing range by failing to decrease his offense level, pursuant to
his contention that he was only a minor participant in the offense. See United
States v. McElwee, 646 F.3d 328, 346 (5th Cir. 2011) (review of minor-role
adjustment is for clear error); U.S.S.G. § 3B1.2. For the adjustment to apply,
Tapia must show he was “peripheral to the advancement of the illicit activity”.
Id. As reflected above, the evidence at trial showed that Tapia both supplied the
methamphetamine involved and provided security for the transaction.
Accordingly, the evidence does not support Tapia’s contention that the court
clearly erred in finding his role was not “peripheral”.
AFFIRMED.

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