UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-10663 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEROME HEATH SENA,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (97-CR-65-2) _________________________________________________________________

September 13, 1999

Before DUHÉ, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jerome Heath Sena appeals his convictions and sentences for

conspiracy to possess and possession with intent to distribute

methamphetamine, challenging, for the first time on appeal, the

sufficiency of the evidence and the methamphetamine quantity used

for sentencing. Because these claims were not raised in district

court, the scope of our review is quite limited; we AFFIRM.

I.

On 22 November 1997, on Interstate 40 near Amarillo, Texas, a

Deputy Sheriff stopped a vehicle for a traffic violation.

Christopher McDonald was driving; Hope Huerta, in the front

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. passenger seat. When they gave conflicting accounts, the Deputy

sought, and received from McDonald, consent to search the vehicle.

Discovered in the search were “bricks or bundles” wrapped in duct

tape, which contained 13.66 kilograms (approximately 32 pounds) of

methamphetamine.

Post-arrest, after McDonald agreed to cooperate with law

enforcement officials, he told them that he was delivering the

methamphetamine to appellant Sena. He also agreed to make recorded

telephone calls to Sena, in an effort to arrange a controlled drug

transaction.

On 23 November, the day after the traffic stop, the Agents

drove McDonald to the trailer in Amarillo where Sena lived with

several others. McDonald went inside to collect $10,000 that Sena

owed him for three kilograms of methamphetamine that McDonald had

“fronted” to him earlier; McDonald returned with the money and gave

it to the Agents, who then obtained a search warrant for the

trailer.

Discovered in the search of the trailer were plastic wrap,

duct tape, digital scales, a weekly planner with apparent notations

for drug transactions, marijuana, and a small quantity of

methamphetamine. The Agents arrested Sena, who told them that

McDonald was his main supplier. The Agents found $2,000 in cash on

Sena’s person.

McDonald testified at trial that, in July 1997, working for

Huerta, he first started bringing methamphetamine from California

to Amarillo; that a woman named Frances introduced him to Sena;

- 2 - that he would give Sena a “couple [of pounds] at a time” to sell,

and Sena would “bring me back the money”; and that, as of 22

November (when McDonald was arrested), Sena owed him for three

pounds of methamphetamine. As for the 32 pounds of methamphetamine

seized in the 22 November traffic stop, McDonald testified that he

“would have brought all 32 pounds to Amarillo to [Sena] and I would

have put it away in a refrigerator and held it and sold him so many

– two at a time”.

At the close of the Government’s case, Sena did not move for

judgment of acquittal; nor did he call any witnesses in his

defense. He was convicted for conspiracy to possess with intent to

distribute methamphetamine, in violation of

, and

for possession with intent to distribute methamphetamine, in

violation of

(a)(1) and

. The jury

also found $11,880 forfeitable as drug proceeds.

Sena’s Presentence Report (PSR) calculated his base offense

level at 38, based on the entire amount of methamphetamine seized

in the traffic stop. U.S.S.G. § 2D1.1. With Sena’s criminal

history category of I, the Guidelines’ imprisonment range was 235

to 293 months. The district court sentenced Sena at the bottom of

that range — concurrent 235-month terms of imprisonment and

concurrent five-year supervised-release terms.

II.

Sena challenges the sufficiency of the evidence for his

convictions, and the methamphetamine quantity used for his base

- 3 - offense level. As stated, these issues were not raised in district

court.

A.

Because Sena did not move for judgment of acquittal, our

review is “limited to the determination of whether there was a

manifest miscarriage of justice”. United States v. Ruiz,

(5th Cir. 1988). “Such a miscarriage would exist only if

the record is devoid of evidence pointing to guilt ... or ...

because evidence on a key element of the offense was so tenuous

that a conviction would be shocking.”

(internal quotation

marks and citations omitted).

1.

For his conspiracy conviction, Sena contends that the

methamphetamine quantity alleged in the indictment is an element of

the offense, and that the Government failed to prove that he

conspired to possess 35 pounds of it. As he concedes, this

contention is foreclosed by our precedent: “proof of the quantity

of controlled substances at issue is not an element of an offense

under

(a)(1) and 846". E.g., United States v.

Cisneros,

(5th Cir. 1997) (brackets, internal

quotation marks, and citation omitted).

Obviously, the record is far from devoid of evidence either

that Sena knowingly agreed to traffic in methamphetamine or that he

voluntarily participated in the agreement. See United States v.

Gonzalez,

(5th Cir. 1996) (to convict for

narcotics conspiracy, Government must prove existence of agreement

- 4 - to violate drug-trafficking laws, defendant’s knowledge of

agreement, and defendant’s voluntary participation in agreement).

The Government presented evidence that Sena had a standing

agreement to buy methamphetamine from McDonald, which he then

distributed.

2.

Sena’s sufficiency challenge to his possession conviction is

likewise premised on the contention that the methamphetamine

quantity alleged in the indictment is an element of the offense.

And, he asserts that there is no evidence that he ever had

constructive possession of the methamphetamine seized during the

traffic stop.

Acknowledging that his sufficiency challenge is reviewable

only for a “manifest miscarriage of justice”, Sena contends that

this “reduced” standard of review violates the “constitutional

requirement of proof beyond a reasonable doubt”. He contends

further that the standard violates the Equal Protection Clause

because it “discriminates between those defendants whose attorneys

make motions for judgment of acquittal and those ... whose

attorneys do not....”

Needless to say, only our en banc court can alter our

precedent regarding the standard of review for unpreserved

sufficiency challenges. E.g., United States v. Laury,

,

151 & n.15 (5th Cir.), cert. denied,

(1995).

Sena’s equal protection challenge is frivolous at best. “The

Equal Protection Clause requires that all persons similarly

- 5 - situated should be treated alike.” Mayabb v. Johnson,

(5th Cir. 1999) (internal quotation marks and citation

omitted). Unless the classification involves a suspect class or a

fundamental right, “rational-basis review applies and this court

need only determine whether the classification is rationally

related to a legitimate government interest”. Rublee v. Fleming,

(5th Cir. 1998). A defendant is not rendered a

member of a “suspect class” simply because, at trial, his attorney

did not to move (for any number of possible reasons, many of which

would be legitimate) for judgment of acquittal. Cf. Nickens v.

Melton,

(5th Cir. 1994) (suspect classification

involves “race, nationality, or alienage”), cert. denied,

(1995).

Nor is a “fundamental right” involved. For starters, Sena

does not even have a constitutional right to appeal. See Abney v.

United States,

(1977) (right to appeal is

statutory).

Moreover, there is obviously a “rational basis” for applying

a more narrow standard of review for issues not raised (forfeited)

in district court. Defendants should challenge the sufficiency of

the evidence at trial, so that the matter can be resolved then and,

possibly, additional evidence adduced, rather than belatedly

raising the issue for the first time on appeal.

As stated, the drug quantity charged in the indictment is not

an element of the offense. See Cisneros,

. And,

the record is not devoid of evidence of Sena’s guilt; indeed, the

- 6 - evidence overwhelmingly established that he possessed

methamphetamine with the intent to distribute it. McDonald

testified that Sena owed him $10,000 for three pounds of

methamphetamine that had been “fronted” earlier; and that, after

his arrest, he went into Sena’s trailer and collected the $10,000.

And, according to one of the officers who arrested Sena, Sena

admitted that McDonald had sold him several pounds of

methamphetamine on several occasions.

B.

Sena maintains that 30 pounds of methamphetamine should not

have been attributed to him for sentencing purposes, because (1) he

did not actually, or constructively, possess that amount; and (2)

although the court determined that it was “reasonably foreseeable”

to him that 30 pounds would be involved in the transaction, the

court failed to make the required finding that he was aware of the

“scope of jointly undertaken criminal activity”. See U.S.S.G. §

1B1.3(a)(1)(B); United States v. Smith,

(5th

Cir.) (defendant cannot be held accountable for acts of co-

conspirators unless court finds that acts were reasonably

foreseeable and within scope of jointly undertaken criminal

activity), cert. denied,

(1994).

Sena did not object to the base offense level calculation of

38 (PSR ¶ 16), based on 9.15 kilograms of “actual” methamphetamine

(including all of the methamphetamine seized during the traffic

stop). Instead, he objected to three other PSR paragraphs: (1) ¶

19 (no offense level reduction for role in offense), claiming that

- 7 - he was a minor participant in the offense, because Huerta and

McDonald were in possession of the 30 pounds and he lacked

knowledge that they were transporting such large quantities; (2) ¶

22 (total offense level calculation), claiming that the appropriate

offense level should be 36, because two points should be deducted

for his role as a minor participant; and (3) ¶ 40 (guideline range

of 235-293 months imprisonment), claiming that, consistent with his

claim that the offense level should be 36, the imprisonment range

should instead be 188-235 months.

Likewise, at sentencing, Sena’s counsel focused solely on the

claim that Sena was entitled to an offense level reduction because

he was a “minor participant” in the offense. In urging that

reduction, counsel asserted that “there is really no evidence to

support a finding that Mr. Sena could [have] reasonably foreseen

that we are talking about this amount of drugs”. Finding this to

have been reasonably foreseeable to Sena, the court found

concomitantly that Sena was not a minor participant.

To say the least, especially in the light of no objection to

PSR ¶ 16 concerning the base offense level, counsel’s claim that

Sena could not have reasonably foreseen that the 30 pounds of

methamphetamine would be involved, made arguing for an offense

level reduction based on Sena’s role in the offense, was inadequate

to preserve his present contention that the 30 pounds were not

attributable to him for calculating the base offense level (now

claiming, instead, that the court failed to find that such quantity

was within the scope of jointly undertaken criminal activity). To

- 8 - preserve a contention for appeal, a party “must object with

sufficient specificity to allow the trial court to address the

issue”. United States v. Burton,

(5th Cir. 1997)

(internal quotation marks and citation omitted).

Accordingly, we review Sena’s new base offense level challenge

only for plain error. “Under Fed.R.Crim.P. 52(b), this court may

correct forfeited errors only when the appellant shows (1) there is

an error, (2) that is clear or obvious, and (3) that affects his

substantial rights.... If these factors are established, the

decision to correct the forfeited error is within the sound

discretion of the court, and the court will not exercise that

discretion unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United

States v. Waldron,

(5th Cir. 1997) (internal

quotation marks and citation omitted).

Even assuming an error, it was neither “plain” nor affected

Sena’s “substantial rights”. The PSR held Sena responsible for

9.15 kilograms of “actual” methamphetamine, resulting in a base

offense level of 38. U.S.S.G. § 2D1.1(c)(1). Even if only the

five pounds (or approximately 2.2 kilograms) of methamphetamine

with which Sena was personally involved had been attributed to him,

his base offense level likely would have been 36. See U.S.S.G. §

2D1.1(c)(2) (one to three kilograms of “actual methamphetamine”).

Along this line, for the offense level of 38, Sena’s sentence

of 235 months was at the bottom of the guideline range; the same

sentence would have been at the top of the guideline range for an

- 9 - offense level of 36. See U.S.S.G., Ch. 5, Pt. A (Sentencing

Table). It is thus possible that Sena could have received the same

sentence even if the court had used the quantity he now urges.

Likewise, even assuming a plain error that affected Sena’s

substantial rights, we would nevertheless decline to exercise our

discretion to correct it, because it does not affect the fairness,

integrity, or public reputation of judicial proceedings.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

- 10 -