USA v. Vargas, No. 08-40006 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 08-40006 Summary Calendar October 8, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. RAMIRO VARGAS, JR Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:06-CR-888-ALL Before SMITH, STEWART, and SOUTHWICK, Circuit Judges. PER CURIAM:* Ramiro Vargas, Jr. appeals his jury verdict conviction for transmitting in interstate or foreign commerce a communication containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c). He argues on appeal that: (1) the evidence produced at trial was insufficient to support the jury s verdict because his actual laptop computer was never produced at trial, and there was no mention that the laptop had been damaged by an electrical surge prior to its seizure; and (2) his trial counsel rendered ineffective assistance by * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-40006 failing to request production of the laptop and by failing to assert that the laptop had been damaged. Examination of the record indicates that, viewing the evidence in the light most favorable to the jury verdict, a rational trier of fact could have found that the Government proved all of the essential elements of Vargas s crime beyond a reasonable doubt. See United States v. Morales, 272 F.3d 284, 287 (5th Cir. 2001); United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999). Moreover, we do not consider Vargas s claims of ineffective assistance of counsel because he did not raise them in district court and the present record is insufficiently developed to resolve them. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006). The district court s judgment is AFFIRMED. 2

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