United States v. Rogers

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 9, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41253
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHANNON ROGERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-02-CR-31-3
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Shannon Rogers appeals his conviction and sentence for
conspiracy to possess with the intent to distribute less than one
gram of LSD. We affirm.
Rogers’s argument that the Government’s “sham prosecution”
violated the Double Jeopardy Clause is waived because it is
raised for the first time on appeal. See United States v. Moore,
958 F.2d 646, 650 (5th Cir. 1992). His assertion that the
district court clearly erred in calculating his criminal history

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No. 02-41253
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score is devoid of argument, citation to legal authority, and
facts explaining why the district court’s determination was
incorrect; it is therefore also waived but for inadequate
briefing. See United States v. Posado-Rios, 158 F.3d 832, 867
(5th Cir. 1998).
Finally, the testimony of Michael Barnett and Frank Jaycox
was sufficient to support Rogers’s conviction. See United States
v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). To the extent
that Rogers challenges their credibility, the jury is the final
arbiter of the credibility of witnesses, like Barnett and Jaycox,
whose testimony is not incredible or facially insubstantial. See
United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994).
AFFIRMED.

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