                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      May 19, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court



U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,

v.                                                     No. 05-4078
                                                     (District of Utah)
VICTOR CISN EROS, also known as                 (D.C. No. 1:04-CR-37-PGC)
M iguel Angel Cisneros, also known as
Victor M anuel Cisneros,

          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R and M cCO NNELL, Circuit Judges.




      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
      Defendant-appellant, Victor Cisneros was charged in a one-count

indictment with possession with intent to distribute five grams or more of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1). The incident that led

to the filing of the charge began when Cisneros w as pulled over for a traffic

violation by Utah Highway Patrol Trooper Ellis A lexander. At Cisneros’ trial,

Alexander testified he was on a routine patrol January 20, 2004, when he noticed

the car in front of him, a Chevrolet Beretta, had two tail lights that were not

functioning. Alexander testified he activated the lights on his patrol car and the

Beretta turned down an alleyway, traveling approximately seventy-five yards

before coming to a stop. Alexander was unable to see inside the vehicle because

the windows were tinted and foggy.

      Trooper Alexander exited his vehicle and made contact with defendant

Cisneros w ho was the driver of the Beretta. Cisneros w as unable to produce his

driver’s license, proof of insurance, or registration. Alexander testified he

noticed Cisneros’ eyes were red and his pupils dilated. He also stated Cisneros

exhibited signs of bruxism, 1 which Alexander testified is associated w ith the use

of central nervous system stimulants. W hen Alexander asked who owned the

Beretta, Cisneros gave a male H ispanic name. Cisneros also told Alexander his




      1
       Bruxism is “the habit of unconsciously gritting or grinding the teeth.”
W ebster’s Third New International D ictionary 287 (1993).

                                          -2-
name w as M iguel Cisneros. After a fingerprint analysis was completed several

weeks later, it was discovered that his real name was Victor Cisneros. 2

      Alexander returned to his patrol car and ran the license plate and the name

M iguel Cisneros. He discovered the vehicle was registered to Amber Short and

there was an outstanding warrant for M iguel Cisneros. Alexander decided to

arrest Cisneros on the outstanding warrant and called for Officer Christiansen of

the Ogden City Police Department to back him up. W hen Officer Christiansen

arrived, he and Trooper A lexander instructed Cisneros to exit the vehicle.

Despite being informed of the outstanding warrant, Cisneros did not tell the

officers his real name. Cisneros w as searched and officers found a cigarette

lighter and some loose change.

      Cisneros was placed in the back seat of Alexander’s patrol car and

Alexander decided to impound the Beretta. W hen Alexander put his head inside

the vehicle, he smelled marijuana and saw pieces of fresh, green marijuana leaves

on the floor in the back seat. There were two passengers in the vehicle; one was

seated in the front passenger seat and the second was seated in the back seat on

the passenger’s side. A third officer, who was able to speak Spanish, questioned

the two passengers. A fter presenting their identification cards, both consented to

a pat-down search. One passenger had approximately $200 in currency in his


      2
       The name and birth date Victor Cisneros provided to Trooper Alexander
were that of his brother, M iguel Cisneros.

                                         -3-
pocket; the other passenger had approximately $400. W hen questioned by the

officer, neither knew how much currency was in his pocket and both denied any

knowledge of the marijuana.

      Trooper Alexander then requested a drug-sniffing dog and handler from the

Ogden Police Department. The handler, Officer M cGuire, placed the dog inside

the vehicle and it immediately alerted, pulling a dark stocking cap from the floor

underneath the driver’s seat. M cGuire discovered a plastic baggie containing a

white crystalized substance inside the cap. W hen he retrieved the cap from under

the seat, he also noticed a pipe of the type commonly used to smoke

methamphetamine. M cGuire placed the pipe inside the cap and handed the cap to

Trooper Alexander. Alexander performed a field test on the crystalized substance

and it tested positive for methamphetamine. A laboratory test later confirmed the

baggie contained more than forty-one grams of methamphetamine with a purity of

ninety-three percent, yielding a total quantity of 37.4 grams of methamphetamine.

      At trial, the government also elicited testimony from Troy Burnett, an

officer with the Ogden City Police Department. Officer Burnett testified that

after the cap was discovered, he and Trooper Alexander commented on the fact

that the two passengers were wearing baseball caps but Cisneros was not wearing

a hat. The officers also observed that Cisneros’ hair was disheveled and Burnett

testified it appeared Cisneros had recently removed a hat from his head. Burnett

then testified that the street value of the methamphetamine found in the Beretta

                                         -4-
was approximately $1,800 to $1,900. If the drugs had been repackaged into

smaller quantities, however, Burnett estimated the street value to be

approximately $8,000 to $10,000. Burnett further testified it would be

“absolutely inconsistent” for an addict to purchase 37.4 grams of

methamphetamine for personal use. Based on Burnett’s experience and training,

he opined that the quantity and purity of the methamphetamine found in the car

indicated it w as “definitely” for distribution and not for personal use.

      At the close of the government’s case, Cisneros moved for a judgment of

acquittal. The district court denied the motion. Cisneros then called several

witnesses. The first, Richard Thompson, testified he sold the Chevrolet Beretta

on behalf of Amber Short during the early part of January 2004. He received

$1,500 cash for the car and did not sign the title over. Thompson identified one

of the passengers in the Beretta as the purchaser.

      Patricia M artinez testified she had lived with Cisneros for eight years. She

first became aware Cisneros was using drugs in June 2003 when Cisneros told her

he was using crystal methamphetamine. According to M artinez, Cisneros was

still using drugs in January 2004. M artinez testified two men came to the house

looking for Cisneros at approximately 11:30 p.m. on January 19, 2004.

According to M artinez, one of the men was wearing a dark, beanie-style knit cap.

Cisneros told M artinez the two men w ere from Arizona and needed a ride because




                                          -5-
they were unfamiliar with the area. Cisneros then left with the men. M artinez

was Cisneros’ final witness.

      The jury convicted Cisneros of possession with intent to distribute 37.4

grams of methamphetamine. He was sentenced to a term of eighty-seven months’

incarceration. In this appeal, Cisneros attacks his conviction, arguing the

Government presented insufficient evidence at trial demonstrating he

constructively possessed the methamphetamine or had the intent to distribute it.

      This court reviews de novo the sufficiency of evidence presented at trial.

See Unites States v. Wilson, 107 F.3d 774, 778 (10th Cir. 1997). Evidence is

sufficient to support a conviction if the direct and circumstantial evidence and the

reasonable inferences drawn therefrom, collectively viewed in the light most

favorable to the Government, would permit any reasonable juror to find the

defendant guilty beyond a reasonable doubt. See id. W hen conducting our

review, “we accept the jury’s resolution of conflicting evidence without weighing

the credibility of witnesses.” United States v. M uessig, 427 F.3d 856, 861 (10th

Cir. 2005).

      To sustain a conviction for possession of methamphetamine with intent to

distribute, the Government was required to prove Cisneros (1) knowingly

possessed the methamphetamine and (2) intended to distribute it. See United

States v. Reece, 86 F.3d 994, 996 (10th Cir. 1996). Possession under § 841(a)(1)

may be actual or constructive and the Government may rely on either direct or

                                         -6-
circumstantial evidence. United States v. Jenkins, 175 F.3d 1208, 1216 (10th Cir.

1999). In this case, the G overnment relied on circumstantial evidence to establish

Cisneros constructively possessed the methamphetamine. “In cases involving

joint occupancy of a vehicle where a controlled substance is found, some

evidence supporting at least a plausible inference the defendant had knowledge of

and access to the controlled substance must be introduced.” United States v.

Delgado-Uribe, 363 F.3d 1077, 1084 (10th Cir. 2004). This court has also held

“it is permissible to infer that the driver of a vehicle has knowledge of the

contraband within it.” United States v. Pulido-Jacobo, 377 F.3d 1124, 1130 (10th

Cir. 2004) (quotation omitted).

      W e conclude the Government presented ample evidence from which a jury

could conclude Cisneros had both knowledge of and access to the

methamphetamine. See United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir.

2004). Officer M cGuire testified he found the drugs under the driver’s seat of the

Beretta and it w as uncontested at trial that Cisneros was the driver. See Pulido-

Jacobo, 377 F.3d at 1130. The Government also presented evidence Cisneros

failed to stop immediately once Trooper Alexander activated his emergency

lights. Alexander testified drivers typically pull over immediately when

requested to do so by an officer. Further, Cisneros was unable to provide any

identification, registration, or proof of insurance. W hen asked to identify himself,

he gave Trooper Alexander his brother’s name and birth date and did not disclose

                                          -7-
his real name even when informed there was an outstanding warrant for M iguel

Cisneros. The circumstances surrounding the traffic stop support a reasonable

inference Cisneros knew he was transporting an illegal substance. See United

States v. Hooks, 780 F.2d 1526, 1532 (10th Cir. 1986) (holding a jury may infer a

defendant’s “guilty knowledge from the undisputed testimony that [defendant]

gave the police a false name”).

      The Government also presented evidence linking the hat in which the drugs

were found to Cisneros. Trooper Alexander and Officer Burnett both testified

that the two passengers in the Beretta were wearing baseball caps but Cisneros

was not wearing a hat. After the hat and the drugs were discovered in the car,

Alexander and Burnett noticed Cisneros’ hair was messy and disheveled and

discussed this between themselves. Burnett testified “it appeared that [Cisneros]

recently had worn that beanie cap.”

      Cisneros argues the fact the methamphetamine w as found under the driver’s

seat should not be given any weight because the two passengers were alone in the

Beretta for nearly five minutes and their actions were not observed during that

time because the dark tint of the windows obscured Trooper A lexander’s view.

Thus, according to Cisneros, the passengers had time to place the drugs under the

driver’s seat after the vehicle was stopped. This argument does not undermine the

Government’s evidence indicating Cisneros had knowledge of and access to the

drugs discovered under his seat. It is settled that “[t]he evidence necessary to

                                         -8-
support a verdict need not conclusively exclude every other reasonable hypothesis

and need not negate all possibilities except guilt.” Pulido-Jacobo, 377 F.3d at

1129.

        Cisneros also argues M artinez’s testimony was the only direct evidence on

the ownership of the beanie cap and her testimony linked the cap to one of the

passengers, not to him. Further, Trooper Alexander did not reference Cisneros’

disheveled hair or the possibility that the beanie cap belonged to Cisneros in his

police report. Cisneros’ arguments, however, go to the weight of conflicting

evidence and the credibility of the witnesses, matters for the jury and not this

court. See Delgado-Uribe, 363 F.3d at 1081. Obviously, the jury disbelieved

M artinez and accepted Trooper Alexander’s testimony. After reviewing the

record, we conclude the Government’s evidence and the plausible inferences to be

drawn therefrom, considered as a whole and in the light most favorable to the

Government, are sufficient to sustain the jury’s finding that Cisneros knowingly

possessed the methamphetamine found in the Beretta.

        Cisneros next argues the G overnment’s evidence was insufficient to support

the jury’s finding he had the intent to distribute the methamphetamine. Proof of

intent to distribute drugs is frequently established through circumstantial evidence

and “may be inferred from the possession of a large quantity of the substance.”

United States v. Powell, 982 F.2d 1422, 1430 (10th Cir. 1992). The Government

introduced evidence the methamphetamine recovered from the Beretta weighed

                                          -9-
more than forty-one grams and had a purity of ninety-three percent. Officer

Burnett testified that a typical addict uses only one-third to one-half gram of

methamphetamine a day. Burnett also testified that the average purity of

methamphetamine possessed by the average user is approximately seventy-five

percent. The purity of methamphetamine found in the Beretta indicated to

Burnett that it was obtained from a top-level source and had not yet been cut or

diluted to increase the bulk. 3 From the Government’s evidence, the jury could

reasonably infer that Cisneros had an intent to distribute the drugs.

      Upon review of the entire record, this court concludes the Government

presented sufficient evidence from which a reasonable jury could conclude

Cisneros possessed the methamphetamine with the intent to distribute it.

Accordingly, the judgment of conviction is hereby affirmed.

                                       ENTERED FOR THE COURT



                                       M ichael R. M urphy
                                       Circuit Judge




      3
        Burnett testified that dealers add methylsulfonylmethane (M SM ) to
methamphetamine to increase its volume which, in turn, increases the dealers’
profits.

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