IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50376 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NOE MEDRANO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-00-CR-81-2 -------------------- October 4, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Noe Medrano has appealed his conviction and sentence for

conspiracy to possess with intent to distribute at least 50

kilograms of marijuana. Medrano contends that the evidence was

insufficient to show that he knowingly participated in the

conspiracy because it established only that he associated with

members of the conspiracy and that he was present when marijuana

was seized. Because Medrano never moved the district court for

judgment of acquittal, we review this issue for plain error. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-50376 -2-

United States v. McCarty,

(5th Cir. 1994)

(citing United States v. Pierre,

(5th Cir.) (en

banc)). Under the plain-error standard, the conviction must be

affirmed unless it will result in a manifest miscarriage of

justice. McCarty,

. “‘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.’”

(quoting

Pierre, 978 F.2d at 1310).

In addition to circumstantial evidence presented showing

Medrano’s knowing involvement in the conspiracy, the Government

presented testimony of a co-conspirator, Gilberto Guajardo, that

Medrano was the intended purchaser of the marijuana. Although

Medrano argues that Guajardo’s testimony is “incredible on its

face,” this court must view the evidence in the light most

favorable to the Government and must give the Government the

benefit of all reasonable inferences and credibility choices. See

United States v. Galvan,

(5th Cir. 1991).

Medrano has not shown that his conviction resulted in a manifest

miscarriage of justice.

Medrano contends that the district court’s drug-quantity

determination, for purposes of calculating Medrano’s base offense

level under U.S.S.G. § 2D1.1©), was clearly erroneous, as the

district court was misinformed about Guajardo’s trial testimony

regarding the number of his prior drug transactions with Medrano. No. 02-50376 -3-

Guajardo concedes that he would still be subject to the same base

offense level under the most conservative construction of

Guajardo’s trial testimony, which the district court credited.

Accordingly, any error on the part of the district court was

harmless. There is no reason to believe that the district court

would impose a different sentence on remand. See Williams v.

United States,

(1992) (harmless-error review).

The conviction and sentence are

AFFIRMED.