     Case: 09-40714     Document: 00511120150          Page: 1    Date Filed: 05/24/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 24, 2010
                                     No. 09-40714
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANGEL WILFREDO PONCIANO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-171-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Angel Wilfredo Ponciano appeals his conviction and sentence for
possession with intent to distribute more than 100 kilograms of marijuana. He
challenges the sufficiency of the evidence supporting a finding of guilty
knowledge. As Ponciano moved for a judgment of acquittal at the close of the
Government’s case and again at the close of all the evidence, we review his
claims de novo. United States v. DeLeon, 247 F.3d 593, 596 & n.1 (5th Cir.
2007).      Thus, we consider the evidence “in the light most favorable to the

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-40714    Document: 00511120150 Page: 2       Date Filed: 05/24/2010
                                 No. 09-40714

government with all reasonable inferences and credibility choices made in
support of a conviction.” United States v. Anderson, 559 F.3d 348, 353 (5th Cir.)
(internal quotation marks and citation omitted), cert. denied, 129 S. Ct. 2814
(2009). “[I]f the evidence would permit a rational fact finder to find every
element of the evidence beyond a reasonable doubt, [this court] must affirm.” Id.
      Because the drugs were concealed within the shipment of avocados in
Ponciano’s trailer, knowledge may not be inferred solely from Ponciano’s control
of the vehicle in which the drugs were found; additional circumstantial evidence
demonstrating guilty knowledge is needed. United States v. Pennington, 20 F.3d
593, 598 (5th Cir. 1998).    There was sufficient circumstantial evidence of
Ponciano’s guilty knowledge. Ponciano provided inconsistent answers to agents
regarding the number of trips he had made since beginning his employment with
Eagle Express. See United States v. Casilla, 20 F.3d 600, 606 (5th Cir. 1994).
The fact that Ponciano provided alternative explanations for the reasons that his
trucking log book did not coincide with his own assertion of his actions on the
evening before and the morning of his arrest does not establish nearly equal
evidence of guilt and innocence. See United States v. Sandlin, 589 F.3d 749, 754
(5th Cir. 2009), cert. denied, 176 L. Ed. 2d 416 (2010). Additionally, Ponciano’s
implausible story about his trip to New Jersey mere days before he commenced
transporting the shipment of avocados to the Northeast could be considered by
the jury as evidence of Ponciano’s guilt.     See Pennington, 20 F.3d at 598
(evidence of a circuitous route and the timing of the trip supported the jury’s
finding of guilt).
      Additionally, the value of the marijuana seized from Ponciano’s vehicle,
approximately $886,800, rendered it reasonable for the jury to deduce that he
“would not have been entrusted with that extremely valuable cargo if he was not
part of the trafficking scheme.” United States v. Villarreal, 324 F.3d 319, 324




                                       2
   Case: 09-40714       Document: 00511120150 Page: 3             Date Filed: 05/24/2010
                                    No. 09-40714

(5th Cir. 2003). To believe Ponciano’s version of the story,1 one would have to
believe that such a large quantity of drugs was placed in his truck while he was
“doing the paperwork” at the cold storage facility or while he lay sleeping in an
unknown motel he happened upon in his travels. The former story was rebutted
by extensive evidence of the amount of surveillance at the cold storage facility
making surreptitious placement of such a large quantity of drugs implausible.
The latter story requires believing the implausible notion that some unknown
passerby fortuitously happened upon Ponciano’s truck (at a motel Ponciano
could not even name the next day) and entrusted him – sight unseen and
destination unknown – with nearly one million dollars worth of drugs. Neither
story is plausible or “nearly equal evidence” of innocence with that supporting
guilt.       Viewing the evidence in the light most favorable to the verdict, we
conclude that a reasonable jury could have found that Ponciano knew he was
transporting drugs. See Pennington, 20 F.3d at 598.
         Ponciano also argues that, in light of the Supreme Court decisions in
Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009), the evidence was
insufficient to support his conviction because it did not establish that he knew
the specific type and quantity of controlled substances he possessed. He also
contends that the district court erred by failing to instruct the jury that it had
to find that he knew the particular quantity of marijuana he possessed. This
issue is foreclosed by current circuit precedent, see United States v. Gamez-
Gonzalez, 319 F.3d 695, 699-700 (5th Cir. 2003) (holding that knowledge of drug
type or quantity is not an element of an offense under 21 U.S.C. § 841), which
has not been overruled by Flores-Figueroa. See United States v. Betancourt, 586




         1
       Ponciano testified that he picked up a delivery of avocados at a cold storage facility;
he watched the loading of the truck and then, towards the end of it went to the office to “do
paperwork.” He left the facility, went to a motel, slept, and set out the next morning
whereupon he was apprehended by border agents.

                                              3
  Case: 09-40714   Document: 00511120150 Page: 4      Date Filed: 05/24/2010
                               No. 09-40714

F.3d 303, 308-09 (5th Cir. 2009), cert. denied, 176 L. Ed. 2d 390 (2010). The
judgment of the district court is thus AFFIRMED.




                                     4
