     Case: 11-40862     Document: 00512026378         Page: 1     Date Filed: 10/19/2012




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

                                                                            FILED
                                                                         October 19, 2012
                                     No. 11-40862
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

VICTOR MARQUEZ-RODRIGUEZ; JOSE MENA-GALVAN,

                                                  Defendants - Appellants


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-315-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        For their convictions for conspiracy to possess with intent to distribute,
and possession with intent to distribute, marijuana, Victor Marquez-Rodriguez
and Jose Mena-Galvan contend the evidence was insufficient to support finding
they possessed the requisite guilty knowledge.               Marquez also presents an
evidentiary-ruling challenge and maintains his written judgment should be
amended.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40862

      Regarding the sufficiency claim, both defendants moved for judgment of
acquittal at the end of the Government’s case-in-chief, and again at the close of
all the evidence; therefore, sufficiency-of-the-evidence review is de novo. E.g.,
United States v. Alarcon, 261 F.3d 416, 421 (5th Cir. 2001).           Our court
“determine[s] whether . . . a rational jury could have found the essential
elements of the offense[ ] beyond a reasonable doubt”. Id. (alterations in
original) (citation omitted).
      Marquez did not present evidence; as such, his sufficiency contention will
be analyzed by considering only the evidence presented during the Government’s
case-in-chief. Id. Because Mena testified, the entire record is considered in
reviewing his claim. Id.
      For the sufficiency claim, the element at issue is guilty knowledge:
whether Marquez and Mena knew of the agreement to possess the controlled
substance with intent to deliver; and whether they knowingly possessed the
controlled substance with intent to deliver. E.g., United States v. Martinez-Lugo,
411 F.3d 597, 599 n.1 (5th Cir. 2005). The following evidence, viewed in the
requisite light most favorable to the Government, establishes there was
substantial evidence from which a rational jury could find that element beyond
a reasonable doubt. Alarcon, 261 F.3d at 421-22.
      For example, the Government adduced testimony that the atypical
demeanor at the checkpoint of Marquez and Mena, two experienced truck
drivers, was something other than a “normal reaction to circumstances which
one does not understand”. United States v. Williams-Hendricks, 805 F.2d 496,
500 (5th Cir. 1986). Marquez and Mena both gave inconsistent statements to
law enforcement regarding whether the load was picked up in Edinburg, Texas,
or Hidalgo, Texas, and Mena made inconsistent statements to law enforcement
and at trial regarding whether he spoke with a broker in conjunction with the
contraband load. E.g., United States v. Diaz-Carreon, 915 F.2d 951, 955 (5th Cir.
1999) (inconsistent statements inherently suspicious).        Marquez gave an

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                                    No. 11-40862

implausible explanation to law enforcement that he learned of the load through
a broker and another intermediary, but had no contact information for either.
Id.     The Government adduced evidence that Marquez and Mena were
transporting the contraband in a cover load consisting of spoiled produce.
Testimony established three bills of lading possessed by Marquez and Mena
were so false that a rational jury could have deemed it unlikely for a drug
operation to leave the bills with innocent drivers who had no knowledge of the
true destination. E.g., United States v. Moreno-Gonzalez, 662 F.3d 369, 373 (5th
Cir. 2011).     Each bill of lading, which represented different shippers and
receivers in different parts of the country, referenced temperature recorders that
came from the same case. Finally, the jury was free to infer the requisite
knowledge from the sheer quantity of marijuana at issue, nearly 5,000 pounds.
Id.
         Marquez additionally maintains the district court abused its discretion in
admitting into evidence his and Mena’s cell-phone records, as well as the cell-
phone records of a Boost Mobile phone with a 956 area code. He contends this
evidence was not relevant because the Government could not link the owner of
the 956 number to drugs or to the load in question. Assuming, arguendo, that
the district court abused its discretion in this regard, given the strength of the
remaining circumstantial evidence of guilty knowledge, any error was harmless
and did not substantially influence the jury’s verdict. FED. R. EVID. 103(a); e.g.,
United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998).
         Finally, we remand pursuant to Federal Rule of Criminal Procedure 36 for
the limited purpose of correcting the “Truck Driving” special condition of
supervised release provision of Marquez’ written judgment. That provision
requires him to declare he is on supervised release for “a[n] alien smuggling
offense” if, while engaged in truck driving, he arrives at a checkpoint, border
crossing, or weigh station, or is stopped for a safety inspection or traffic
violation. As the Government agrees, “alien smuggling offense” should be

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changed to “drug-related offense”, as was orally pronounced at sentencing. E.g.,
United States v. Sapp, 439 F.2d 817, 821 (5th Cir. 1971).
      AFFIRMED; REMANDED TO AMEND JUDGMENT FOR MARQUEZ.




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