UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50272 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS MANUEL FABELA,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (P-98-CR-185-1-B)

March 7, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Jesus Manuel Fabela appeals his conviction (one issue) and

sentence (one issue) for possession with intent to distribute

marijuana.

Concerning his conviction, Fabela maintains the evidence was

insufficient to support finding he was aware the truck he was

driving contained drugs. But, because he failed, at the close of

all the evidence (Fabela testified), to renew his motion for

acquittal, we consider this issue

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. not under the ususal standard of review for claims of insufficiency of evidence, but rather under a much stricter standard. We are limited to the determination of whether there was a manifest miscarriage of justice. Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt, or because the evidence on a key element of the offense was so tenuous that a conviction would be shocking.

United States v. Knezek,

, 400 n.14 (5th Cir. 1992)

(emphasis added; internal quotation marks and ellipsis omitted).

There was, inter alia, evidence: Fabela was nervous upon

initial questioning; demonstrated no surprise when told of the

marijuana in the truck he was driving; and, after the marijuana was

discovered, changed his story regarding his travel destination and

purpose. These factors may constitute circumstantial evidence of

guilt. E.g., United States v. Ortega-Reyna,

(5th

Cir. 1998). In short, the record is not devoid of evidence

pointing to guilt.

Concerning his sentence, Fabela contends the district court

erred in attributing to him the drugs found in the truck driven by

his co-defendant, Jorge Saldana. A district court’s determination

of the quantity of drugs for sentencing purposes is a finding of

fact reviewed only for clear error. E.g., United States v. Torres,

(5th Cir.), cert. denied,

(1997).

If Fabela was aware of the marijuana in his truck, as the jury

necessarily found, then it was not clearly erroneous to find it

reasonably foreseeable to Fabela that Saldana’s truck also

contained marijuana. This is particularly true given the evidence

that: Fabela and Saldana were together approached about the

2 opportunity to drive the vehicles; and they picked up the trucks at

approximately the same time. See U.S.S.G. § 1B1.3 (including in

base-offense level calculation “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity, that occurred during the commission of the

offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that

offense”); United States v. Hernandez-Coronado,

(5th Cir. 1994).

AFFIRMED

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