UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-60114

Summary Calendar

UNITED STATES OF AMERICA,

Appellee,

VERSUS

HOMERO ALANIZ - ALANIZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas ( November 14, 1994 )

Before WISDOM, KING, and GARWOOD, Circuit Judges.

WISDOM, Circuit Judge.

Today we review the district court's revocation of a period of

supervised release and imposition of a mandatory jail term. The

court based its decision on a finding that the petitioner violated

a standard condition of supervised release by conspiring to possess

marihuana. Because we hold that the district court was correct in its assessment of the evidence, including its admissibility, we

AFFIRM.

I.

On August 1, 1988, Homero Alaniz-Alaniz (Alaniz) pleaded

guilty to possession with intent to distribute approximately 390

grams of cocaine. The district court sentenced Alaniz to 46 months

in prison, followed by a four year term of supervised release.

Alaniz's term of supervised release commenced on October 7th,

1991. On July 1, 1993, a United States Probation Officer filed a

petition for action on a term of supervised release, alleging that

Alaniz violated a condition of his release by conspiring to possess

marihuana.1 The petition alleged that on May 17, 1993, Alaniz was

arrested near a farm in Coldwater, Michigan, and that,

subsequently, law enforcement officials found approximately 1600

1 The petition further alleged that Alaniz violated standard conditions of his release by leaving the judicial district without the permission of his probation officer; by possessing and distributing marihuana; by being in a place where marihuana was sold; by associating with individuals who were involved in criminal activity and with a person, Rolando Longoria, who had been convicted of a felony; and by failing to notify his probation officer within 72 hours of his arrest.

2 pounds of marihuana on and around the premises.

Thereafter, on November 22, 1993, the probation office

informed the court that the United States attorney for the Western

District of Michigan had moved to dismiss the drug charges against

Alaniz and that the district court had granted the motion. The

motion explained that the government believed that Alaniz was not

involved in the conspiracy charged in the indictment, but rather,

that he was involved in a conspiracy to possess a smaller amount of

marihuana.

At a December 16, 1993, hearing on the petition, Alaniz

admitted violating certain conditions of his release; however, the

district court ordered an additional hearing with regard to the

alleged conspiracy.2 The probation officer subsequently filed an

amended petition with respect to that violation. The petition

alleged that on May 16th and 17th, 1993, Alaniz conspired to

smuggle 50 pounds of marihuana from Roma, Texas, to Coldwater,

2 Alaniz admitted to leaving the judicial district without the permission of his probation officer, and also to failing to notify his probation officer within 72 hours of his arrest.

3 Michigan, with the intent to distribute it.

The court found that Alaniz conspired to possess marihuana and

sentenced Alaniz to 16 months in prison. This appeal followed.

II.

This court reviews the factual findings of the district court

for "clear error."3 The district court's application and

interpretation of the Sentencing Guidelines are matters of law

subject to de novo review.4

III.

Alaniz asserts arguments concerning both the quality and the

quantity of the evidence offered against him.

A. Credibility of the Evidence

As to the quality of the evidence, Alaniz contends that the

testimony of the government's sole witness in the revocation

proceedings was vacillating, contradictory, and wholly unreliable.

3 United States v. Montoya-Ortiz,

(5th Cir. 1993). A factual finding is clearly erroneous if it is not plausible in light of the record taken as a whole. See Anderson v. City Of Bessemer City,

(1985). 4 Montoya-Ortiz,

.

4 We need not examine this issue.

The government submitted the affidavit of Rolando G. Longoria

to support the charge that Alaniz conspired to possess marihuana.

At the hearing, Longoria testified that he travelled with his

father (Longoria Sr.) and Alaniz from Texas to Michigan. The

Longorias met Alaniz in Rio Grande, followed him to another home,

and met two other people. The Longorias and Alaniz travelled

together, and the other couple drove a grey van. Longoria

testified that at some point, the vehicles were separated.

Longoria further testified that the police stopped his vehicle

in Illinois. While they were stopped, a police dog alerted causing

the officers to the possibility of contraband and they searched the

vehicle. Longoria testified that both his father and Alaniz got

"kind of nervous", and that when he asked his father what was

wrong, his father replied that "they had 50 pounds in the van." In

response to questions from the prosecutor, Longoria clarified that

"50 pounds" referred to marihuana and that "they" referred to his

father and Alaniz. The court then asked whether Longoria Sr. (the

5 witness's father) had stated specifically that "Homero [Alaniz] and

I have 50 pounds." The following exchange took place between the

court and Longoria:

THE COURT: He mentioned Homero Alaniz's name?

THE WITNESS: Yes, he did.

THE COURT: And how was -- why [sic] was it that he said exactly?

THE WITNESS: He goes, have you -- he asked me if I had seen the gray van and I asked why. And he goes, well, because we have 50 pounds in the van.

THE COURT: But, the question remains, did he mention Homero Alaniz--

THE WITNESS: Yes, he did.

THE COURT: --or he said we and you assumed--

THE WITNESS: No, no, he didn't say we, he said me and Homero have 50 pounds in the van.

Longoria testified that after the search of the vehicle, they

were released and continued to Coldwater. Upon their arrival,

Jesse Villasenor informed Alaniz that his people in the gray van

had been calling. Villasenor and Alaniz then left the house and

the raid occurred thirty minutes later. Longoria testified that

his father had been convicted on two prior occasions for

"importing/exporting marijuana," and that his father currently was

6 incarcerated in Oklahoma. On cross examination, Longoria testified

that he did not hear his father and Alaniz discuss marihuana at

all. The only marihuana he saw was a "joint" that he saw his

father smoke. He testified that he did not see any marihuana in

the van, and that the police never picked up either the van or the

alleged "50 pounds".

Based on this testimony, the court found that Alaniz had

violated standard condition number one of his supervised release by

knowingly and intentionally conspiring with Longoria Sr. to possess

marihuana with the intent to distribute it.

It is not this Court's function to pass on a district court's

determination regarding the credibility of the witness.5 We may

find testimony to be "incredible as a matter of law," if the

witness testifies to facts that he "physically could not have

observed or events that could not have occurred under the laws of

nature."6 Short of that, we exercise great deference to a district

5 See U.S. v. Gadison,

(5th Cir. 1993). 6

.

7 court's credibility findings. Longoria was present on the trip to

Michigan, so it is entirely possible that he had the conversation

to which he testifies. Further, such a conversation is entirely

possible under the laws of nature. Hence, we defer to the judgment

of the district court that Longoria's testimony was credible.

B. Admissibility of Hearsay Testimony

Alaniz attacks the quality of the evidence from another angle

as well. Alaniz asserts that because Longoria's testimony lacked

credibility, such hearsay testimony should not have been admitted

because it was not sufficiently reliable. "[C]ourts considering

the admissibility of hearsay in revocation proceedings have adopted

an approach which balances the [releasee's] interest in confronting

a particular witness against the government's good cause for

denying it, particularly focusing on the indicia of reliability of

a given hearsay statement."7 The district judge did not apply this

balancing test, however, because Alaniz failed to object to this

7 United States v. Kindred,

(5th Cir. 1990) (internal quotations omitted).

8 testimony on hearsay grounds.8

Where a defendant in a criminal case has forfeited an error by

failing to object, this court may remedy the error only in the most

exceptional cases.9 The Supreme Court has instructed that in such

an exceptional case, the defendant has the burden to show that

there is clear or obvious error and that it affects substantial

rights.10 Further, even when the appellant has carried that burden,

"Rule 52(b) is permissive, not mandatory. If the forfeited error

is 'plain' and 'affects substantial rights', the Court of Appeals

has authority to order correction, but is not required to do so."11

As the Supreme Court stated in Olano,12 it is the standard

articulated in United States v. Atkinson that should guide the

8 Although the district court did not explicitly engage in this balancing test, it did find the testimony of Longoria to be sufficiently 'credible' to support the government's charge. Implicit in that finding is that the court credits the testimony as reliable. 9 United States v. Rodriguez,

(5th Cir. 1994). 10 United States v. Olano, ___ U.S. ___,

(1993). 11

at __ __,

. 12

at ___ ___,

.

9 application of Rule 52(b). To wit, the Court of Appeals should

correct a plain error that affects substantial rights only if the

error "seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings."13 Thus, this Court's

discretion to correct an error pursuant to Rule 52(b) is narrow.14

Guided by the Atkinson standard, we decline to review Alaniz's

challenge to the admissibility of Longoria's testimony on hearsay

grounds.15 Even assuming "error" that is "plain", Alaniz has failed

to show that the district court violated his "substantial rights"

by relying on the testimony.

C. Sufficiency of the Evidence

As to the quantity of the evidence, Alaniz maintains that

Longoria's testimony (being the only testimony) was insufficient to

support the district court's finding that Alaniz conspired with

13 United States v. Atkinson,

(1936). 14 Rodriguez,

. 15 See also United States v. Vontsteen,

(5th Cir.) (en banc), cert. denied,

(1992) (quoting Wayne R. LaFave and Jerold H. Israel, 3 Criminal Procedure § 26.5 at 251-52 (West 1984) (footnote omitted)) (discussing "many rationales for the raise-or-waive rule").

10 Longoria Sr. to possess 50 pounds of marihuana with the intent to

distribute it.

In considering Alaniz's challenge to the sufficiency of the

evidence, this Court "must view the evidence and all reasonable

inferences that may be drawn from the evidence in a light most

favorable to the government."16 In fulfilling his task as fact-

finder, the judge is "free to choose among reasonable constructions

of the evidence".17 The evidence is sufficient if a reasonable

trier of fact could reach the conclusion being challenged.18

At a revocation proceeding, the government has the burden of

proving, by a preponderance of the evidence, that the releasee

committed the charged violation.19 The instant violation,

conspiracy to possess with the intent to distribute marihuana,

involves three elements: (1) an agreement to possess with intent to

16 United States v. Prieto-Tejas,

(5th Cir.), reh'g denied,

(1986). 17 United States v. Bell,

(5th Cir. 1982) (en banc), aff'd.,

(1983). 18

19 United States v. Montez,

(5th Cir. 1992).

11 distribute marihuana; (2) the defendant's knowledge of the

agreement; and (3) the defendant's voluntary participation.20 A

conviction for "drug conspiracy does not require proof of

possession or any other overt act."21

A cursory canvas of the facts makes it apparent that the

district court was justified in its conclusion that the government

carried its burden. Accordingly, we again defer to the judgement

of the district court.

IV.

Since we agree with the district court and its determinations

regarding the evidence presented at the revocation hearing, we

AFFIRM.

20 United States v. Martinez,

(5th Cir. 1992), cert. denied,

(1993). 21 United States v. Lee,

(5th Cir.), cert. denied,

(1981).

12