                     UNITED STATES COURT OF APPEALS
Filed 1/9/96
                             TENTH CIRCUIT


UNITED STATES OF AMERICA,
        Plaintiff - Appellee,                    No. 95-2046
        v.                               (D.C. No. CR 94-503JP)
JAIME OPORTO,                           (District of New Mexico)
        Defendant - Appellant.



                          ORDER AND JUDGMENT *




Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.




        The parties have agreed that this case may be submitted for

decision on the briefs.      See Fed. R. App. P. 34(f); 10th Cir. R.
34.1.2.      After examining the briefs and appellate record, this

panel has determined unanimously that oral argument would not
materially assist the determination of this appeal.        See Fed. R.

App. P. 34(a); 10th Cir. R. 34.1.9.      The case is therefore

ordered submitted without oral argument.


        This is a direct criminal appeal from a final judgment of



    *
     This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
conviction.    Appellant Jaime Oporto was found guilty by a jury of

possession with intent to distribute less than fifty kilograms of

marijuana in violation of 21 U.S.C. § 841, and of carrying and

using a firearm in connection with a drug trafficking crime in

violation of 18 U.S.C. § 924(c).



    Mr. Oporto drove into the United States Border Patrol

checkpoint on Highway 54 in Otero County, New Mexico, on August

11, 1994.     He was the sole occupant of a blue pickup truck.
Agent Stan Bell, on duty in the primary inspection area of the

checkpoint, detected the scent of burnt marijuana emanating from
the truck.



    Agent Bell requested permission from the Defendant to have a

dog inspect the truck, and he sent the Defendant to the secondary

inspection area of the checkpoint.     Agent Bell asked Mr. Oporto
who owned the truck, and he replied that it belonged to his aunt.

Agent Bell’s report, introduced as a defense exhibit, stated,
“The truck returned to a Dora Hernandez, 1821 McRae, El Paso,

Texas . . . [W]hen I asked if Dora was indeed his aunt he did say

yes she was.”     (Appellant’s App. at 2, Tr. at 39-40).



    In the secondary inspection area, Agent Ray Sanchez

inspected the truck using a dog trained in the detection of
narcotics.     The canine indicated that drugs were hidden in the

gas tank area of the truck.    Inspecting the gas tank, Agent Bell

                                  2
saw that the gas tank was covered with mud.    This contrasted with

the cleanliness of the remainder of the truck.    He also observed

that the braces holding the gas tank in place did not appear to

have been factory-installed.



     Agents removed the gas tank, finding two trap doors sealed

with bondo. 1   Inside the sealed compartments, the agents found

seventy pounds of marijuana with an estimated value of $57,000.

Agents also found and seized a cellular telephone in the cab of
the truck.


     Four days later, Drug Enforcement Administration Task Force

Officer Susan Sanchez searched the truck at an impoundment lot

after being assigned the case.    Officer Sanchez unlocked the

truck and found a Colt .25 caliber automatic pistol under the

floor mat on the driver’s side of the truck.    The gun, which was
within reach of the driver, was loaded with four rounds.



     Officer Sanchez also seized a bank statement in Mr. Oporto’s

name from the truck.    She examined the gas tank and discovered

that the presence of the compartments for the marijuana

significantly reduced the capacity of the gas tank.    She checked

the name and address on the registration for the truck--Dora



     1
        Bondo is a binding agent widely used to repair holes in
car bodies.

                                  3
Hernandez at 1821 McRae in El Paso, Texas.   She could not locate

Ms. Hernandez, and she learned that the address did not exist.



    Alcohol, Tobacco and Firearms Agent Randy Guthrie test-fired

the handgun and found it to work properly.   He testified that

narcotics smugglers use firearms to protect their drugs and

money.



    The defense called no witnesses.    The jury returned verdicts
of guilty on both the drug trafficking and firearm counts.    The

district court sentenced Mr. Oporto to twenty-seven months on the
drug charge, and to sixty months on the firearm charge, to be

served consecutively and followed by concurrent three-year terms

of supervised release.



    Appellant’s sole issue is whether sufficient evidence was
presented to support his convictions.   Mr. Oporto’s argument that

the evidence was insufficient is without merit.


    In determining whether a rational trier of fact could

reasonably have found the defendant guilty beyond a reasonable

doubt, we review the evidence and reasonable inferences drawn
therefrom in a light most favorable to the government.     United
States v. Hanson, 41 F.3d 580, 582 (10th Cir. 1994).     We must

make a de novo review of the record to determine whether

sufficient evidence supported the defendant’s conviction.     United

                               4
States v. Chavez-Palacios , 30 F.3d 1290, 1294 (10th Cir. 1994).
“To overturn a jury’s conclusion of fact, we must find that no

reasonable juror could have reached the disputed verdict.”

United States v. Hoenscheidt , 7 F.3d 1528, 1530 (10th Cir. 1993).



     In order to convict Mr. Oporto on the drug charge, the jury

had to find that he knowingly possessed a controlled substance

and that he intended to distribute that substance.   Appellant

asserts that knowledge of the contraband cannot be inferred from
mere control of a vehicle when the contraband is discovered in

hidden compartments within the vehicle.


     We have previously found it “permissible to infer that the

driver of a vehicle has knowledge of the contraband within it.”

United States v. Levario , 877 F.2d 1483, 1485-86 (10th Cir.

1989).   Rather than relying solely on control of the vehicle,
Appellant urges us to adopt the analysis used by the Fifth

Circuit which looks for “additional factors indicating knowledge”
to establish possession when contraband is stashed away in hidden

compartments within a vehicle.   (Appellant’s Br. at 8 (citing to

United States v. Olivier-Becerril , 861 F.2d 424, 426-427 (5th
Cir. 1988)); see also United States v. Resio-Trejo , 45 F.3d 907,

911 (5th Cir. 1995) (explaining the Fifth Circuit approach to

hidden compartment cases).   The outcome of Defendant’s

conviction, however, would not change even if we look for

additional evidence indicating knowledge of possession.

                                 5
     Like the defendant in United States v. Nicholson , 17 F.3d
1294, 1297 (10th Cir. 1994), the totality of the evidence in this

case established that the Defendant knowingly possessed the

marijuana hidden in the truck.   As with Nicholson, Mr. Oporto was

the only person in the truck, and it contained a personal item
belonging to him (his bank statement).   Furthermore, the odor of

burnt marijuana leads to the inference that the Defendant had

recently possessed and smoked marijuana. 2



     The totality of the evidence, together within reasonable

inferences derived from that evidence, was sufficient to support
a jury finding that Mr. Oporto knowingly possessed the seventy

pounds of marijuana secreted behind the gas tanks of his truck.


     Sufficient evidence also existed to show that Defendant had

the intent to distribute the marijuana he possessed.   Many
circuit courts have recognized that an intent to distribute drugs

can be inferred from the possession of a large quantity of a

controlled substance.   See United States v. Powell , 982 F.2d

1422, 1430 (10th Cir. 1992), cert. denied, 113 S. Ct. 2361
(1993); see also United States v. Love , 599 F.2d 107, 109 (5th

Cir.) (finding twenty-six pounds of marijuana was enough to infer

an intent to distribute), cert. denied, 444 U.S. 944 (1979).     The


     2
        Although, the odor of burnt marijuana does not
necessarily lead to an inference regarding the quantity of
marijuana to be found.

                                 6
truck driven by the Defendant contained seventy pounds of

marijuana, which the government valued at $57,000.       It stretches

the bounds of the reasonable imagination that the Defendant

possessed seventy pounds of marijuana for his personal use.



    Finally, Appellant challenges his firearm conviction on the

grounds that insufficient evidence was presented to establish the

underlying crime for the firearm offense.      During the pendency of

this appeal the Supreme Court decided Bailey v. United States ,
1995 WL 712269 (Oct. 30, 1995).       In Bailey, the Court unanimously
held that the term “use” in § 924(c)(1) means that the defendant
must have “actively employed the firearm during and in relation

to the predicate crime.”   Id.    While Appellant did not raise the

issue directly, we believe that the trial court should reconsider

the firearm conviction in light of Bailey because the firearm was

found four days after Defendant’s arrest under the floor mat of
his vehicle.


    We affirm Defendant’s conviction for drug trafficking and

remand Defendant’s conviction on the firearm charge for

reconsideration in light of Bailey.       The mandate shall issue

forthwith.



    AFFIRMED and REMANDED.
                                 Entered for the Court

                                 Monroe G. McKay

                                  7
Circuit Judge




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