     Case: 12-40064       Document: 00512311213         Page: 1     Date Filed: 07/17/2013




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

                                                                            FILED
                                                                            July 17, 2013

                                       No. 12-40064                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JOSE VIELMA-GARCIA; JESUS GONZALEZ-HINOJOSA,

                                                  Defendants-Appellants



                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-284-1


Before SMITH, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendants Jose Vielma-Garcia (“Vielma”) and Jesus Gonzalez-Hinojosa
(“Gonzalez”), timely appeal their convictions, arising out of the same set of facts,
for (1) conspiring to possess with intent to distribute 1,000 kilograms or more of
marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and (2)
possessing marijuana with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. Defendants challenge the conspiracy
and possession convictions as supported by insufficient evidence and on the basis

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 12-40064

of an alternate juror’s alleged participation in the deliberations. Gonzalez also
appeals the six-level sentencing enhancement imposed under United States
Sentencing Guidelines Manual (“U.S.S.G.”) § 3A1.2(c)(1) (2011). We AFFIRM.
     I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      Acting on information that marijuana was being stored at a ranch, Border
Patrol agents set up surveillance around the perimeter of the ranch. Agents
testified that they observed a white pickup truck containing three individuals
approach a secondary gate, and an individual—later identified as Vielma—exit
the truck, unlock and open the gate to allow the truck through, and then secure
the gate and return to the truck. The gate was secured by a combination lock.
      Other agents then observed Defendants walking in a southwesterly
direction toward a marijuana pile. Defendants were eight to ten yards away
from the pile when agents began their pursuit. One agent pursued Vielma on
foot until he got caught in a barbed wire fence where he was apprehended.
Another agent chased Gonzalez into a thick brush where a scuffle ensued before
the agent received assistance and handcuffed Gonzalez. The agents ultimately
discovered a total of four separate piles of marijuana (6,024 pounds) worth
approximately $5,000,000 hidden on the ranch.
      Defendants spontaneously told agents that they were illegal aliens trying
to make their way to Houston. Once in custody, Gonzalez also yelled to Vielma
in Spanish to tell the agents that they were illegal aliens trying to make their
way to Houston.
      Defendants were charged with conspiracy to possess and possession with
intent to distribute 1,000 kilograms or more of marijuana. Defendants pled not
guilty to both counts and proceeded to trial by jury.
      At trial, agents testified based on training and experience that Defendants’
actions were inconsistent with those of undocumented immigrants trying to
make their way to safer locations north of the border. While such immigrants

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                                  No. 12-40064

typically conceal themselves in vehicles and get dropped off ten to fifteen miles
south of border checkpoints, the ranch was sixty miles from the closest
checkpoint. Such immigrants also typically pack cold-weather clothing and food
for their journeys; however, Defendants were wearing jeans and shirts and had
no other clothing or supplies. Defendants were not accompanied by a guide or
a large group, which is also atypical of undocumented immigrants. Moreover,
Defendants were headed south when they were apprehended, the opposite
direction from Houston.
      To further rebut Defendants’ version of the events, the Government
showed that Vielma’s wife and children live in a home six miles from the ranch.
Vielma is married to Gonzalez’s sister, and Gonzalez’s parents live in a trailer
next door to the home. The jury also heard testimony that Vielma’s uncle owned
the marijuana and that Defendants were there to take inventory.
      Finally, the Government offered evidence of Defendants’ previous
marijuana convictions to show intent, knowledge, preparation, common scheme
or plan, and absence of mistake. The jury found Defendants guilty on both
counts of the indictment.
      At the sentencing hearing, the agent who apprehended Gonzalez testified
that, after pursuing Gonzalez into an area of thorny brush, he attempted to
handcuff Gonzalez, and Gonzalez tried to shrug the agent off of him. The
struggle continued until another agent came to the first agent’s assistance and
the two were able to handcuff Gonzalez. The district court found sufficient
evidence to apply the Official Victim Enhancement to Gonzalez’s base offense
level, which increased it by six levels. See U.S.S.G. § 3A1.2(c)(1).
      The district court sentenced Vielma to serve two concurrent 240-month
terms of imprisonment followed by concurrent ten-year terms of supervised
release. The district court sentenced Gonzalez to serve two concurrent 235-
month terms of imprisonment followed by concurrent five-year terms of

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                                     No. 12-40064

supervised release.      The court denied Defendants’ motion for a judgment of
acquittal. Both Defendants appeal their convictions; only Gonzalez appeals his
sentence.
                                  II. DISCUSSION
A.     Sufficiency of the Evidence
       We review Defendants’ contention that the jury convicted them upon the
basis of insufficient evidence de novo, in the light most favorable to the verdict.
United States v. Winkler, 639 F.3d 692, 696 (5th Cir. 2011). “[T]he relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).     Importantly, although the Government “must do more than pile
inference upon inference,” United States v. Williams-Hendricks, 805 F.2d 496,
502 (5th Cir. 1986) (quotation marks omitted), “[t]he evidence need not exclude
every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt.” United States v. Moreno, 185 F.3d 465, 471 (5th
Cir. 1999).
       Defendants challenge the knowledge and voluntary participation elements
of their conspiracy convictions. See §§ 841(a)(1), 846; see also United States v.
Ochoa, 667 F.3d 643, 648 (5th Cir. 2012) (“To establish a conspiracy, the
government must prove that: (1) an agreement existed between two or more
persons to violate federal narcotics law, (2) the defendant knew of the existence
of the agreement, and (3) the defendant voluntarily participated in the
conspiracy.”).1




       1
          Both counts required proof of more than 1,000 kilograms of marijuana. The parties
stipulated that the substance seized was marijuana. The amount recovered—6,024 pounds—
is equivalent to approximately 2,700 kilograms.

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      “Circumstantial evidence may establish the existence of a conspiracy, as
well as an individual’s voluntary participation in it, and ‘[c]ircumstances
altogether inconclusive, if separately considered, may, by their number and joint
operation . . . be sufficient to constitute conclusive proof.’” United States v.
Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998) (alterations in original)
(citation omitted). While “[p]roof of the mere presence of the defendant at a
scene of criminal activity and his association with the other defendants is
insufficient to support a criminal conviction[,] . . . ‘[a] jury may find
knowledgeable, voluntary participation from presence when the presence is such
that it would be unreasonable for anyone other than a knowledgeable participant
to be present.’” United States v. Paul, 142 F.3d 836, 840 (5th Cir. 1998) (last
alteration in original) (citations omitted).
      The proffered evidence was sufficient. See Jackson, 443 U.S. at 319. The
jury heard testimony that Defendants entered a remote and highly-secured
ranch containing a large quantity of marijuana through a locked gate to which
one had the code and proceeded directly towards the marijuana. The jury
reasonably disbelieved Defendants’ theory of innocence and concluded that they
were knowing, voluntary participants in a drug-trafficking conspiracy. The
totality of the evidence presented allowed a jury to “find knowledgeable,
voluntary participation” because it tended to show “that it would be
unreasonable for anyone other than a knowledgeable participant to be present.”
See Paul, 142 F.3d at 840.
      Defendants further contend that the evidence was insufficient to support
the knowledge element of their possession convictions. See 21 U.S.C. § 841(a)(1);
see also United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008) (“The
essential elements of a violation of Section 841(a)(1) include: (1) knowledge, (2)
possession, and (3) intent to distribute the controlled substance.”).



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       The same evidence offered in support of the preceding conspiracy analysis
easily defeats this argument. Agents discovered $5,000,000 worth of marijuana
on the ranch.       We have held that a large amount of drugs is one factor
demonstrating knowledge. United States v. Villarreal, 324 F.3d 319, 324 (5th
Cir. 2003). Further, jurors could reasonably infer knowledge from Defendants’
incredulous explanation for their presence on the ranch. See United States v.
Diaz-Carreon, 915 F.2d 951, 955 (5th Cir. 1990). Though Defendants “offered an
alternative theory to explain their arrest, the jury chose to believe the testimony
of the government’s witnesses and reasonably concluded that [Defendants] had,
beyond a reasonable doubt,” committed the charged offenses. See United States
v. Guanespen-Portillo, 514 F.3d 393, 397 (5th Cir. 2008). Accordingly, we
conclude that sufficient evidence existed for a jury to convict Defendants on both
counts of the indictment.
B.     Alternate Juror Deliberations
       Defendants next allege that the district court committed reversible plain
error by allowing an alternate juror to participate in juror deliberations in
contravention of Federal Rule of Criminal Procedure 24(c)(3).2                       Because
Defendants did not raise this objection before the district court, we consider it
only for plain error. United States v. Olano, 507 U.S. 725, 735-36 (1993). Plain-
error review consists of four prongs:
       First, there must be an error or defect—some sort of ‘[d]eviation
       from a legal rule’—that has not been intentionally relinquished or
       abandoned . . . . Second, the legal error must be clear or obvious,
       rather than subject to reasonable dispute. Third, the error must
       have affected the appellant’s substantial rights, which in the
       ordinary case means he must demonstrate that it ‘affected the

       2
          The rule provides: “The court may retain alternate jurors after the jury retires to
deliberate. The court must ensure that a retained alternate does not discuss the case with
anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror
after deliberations have begun, the court must instruct the jury to begin its deliberations
anew.” Fed. R. Crim. P. 24(c)(3).

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                                  No. 12-40064

      outcome of the district court proceedings.’ Fourth . . . if the above
      three prongs are satisfied, the court of appeals has the discretion to
      remedy the error—discretion which ought to be exercised only if the
      error ‘“seriously affect[s] the fairness, integrity or public reputation
      of judicial proceedings.’”
Puckett v. United States, 556 U.S. 129, 135 (2009) (some alterations in original)
(citations omitted). “The defendant bears the burden of demonstrating that a
plain error affects his substantial rights.” United States v. Gonzalez-Rodriguez,
621 F.3d 354, 363 (5th Cir. 2010).
       Defendants point to no record evidence that demonstrates that the
alternate juror actually participated in the deliberations. The only evidence
offered in support of this contention is the court’s instruction to the jurors to
“retire to the jury room to begin [their] deliberations” without an on-the-record
discharge of the alternate. Without record citation or support, Vielma contends
that “[a]fter this instruction, all thirteen jurors, including the alternate juror,
exited to the jury room and deliberated.” While an on-the-record discharge would
be preferable, the record does not demonstrate that the alternate juror actually
deliberated rather than being released or retained in a separate location by the
court off the record.
      Even assuming the existence of an error, Defendants have not satisfied
their burden to prove that any error affected their substantial rights. See
Puckett, 556 U.S. at 135; see also Olano, 507 U.S. at 737 (“The presence of
alternate jurors during jury deliberations is not the kind of error that ‘affect[s]
substantial rights’ independent of its prejudicial impact.” (alteration in
original)).   We thus discern no plain error concerning the jury’s deliberations.
C.    Sentencing Enhancement
      Finally, Gonzalez challenges one aspect of his sentence. He asserts that
the district court erred in applying the enhancement under U.S.S.G.
§ 3A1.2(c)(1) which states:


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      (c) If, in a manner creating substantial risk of serious bodily injury,
      the defendant or a person for whose conduct the defendant is
      otherwise accountable—
              (1) knowing or having reasonable cause to believe that a
              person was a law enforcement officer, assaulted such officer
              during the course of the offense or immediate flight therefrom
              ...
              increase by 6 levels.
      We review the district court’s interpretation of the Sentencing Guidelines
de novo, and its factual findings for clear error. United States v. Serfass, 684 F.3d
548, 550 (5th Cir.), cert. denied, 133 S. Ct. 623 (2012). “A finding of fact is clearly
erroneous only if, after reviewing all the evidence, we are left with the definite
and firm conviction that a mistake has been committed.” Id. (internal quotation
marks omitted). The district court considered and adopted the Pre-sentence
Investigation Report and heard conflicting evidence regarding the events
surrounding Gonzalez’s apprehension by the Border Patrol agents. The district
court concluded—with ample evidentiary support—that Gonzalez was
“shrugging” off the officer and then “struggling” with the officer in a pile of thorny
branches that included “long thorns of mesquite and such” that were “almost 2
inches long” by Gonzalez’s own admission. Against this backdrop, the district
court’s implicit conclusion that the facts surrounding the struggle met the
requirements of the enhancement was not clearly erroneous.
      AFFIRMED.




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