     Case: 12-50621       Document: 00512370620         Page: 1     Date Filed: 09/11/2013




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

                                                                            FILED
                                                                        September 11, 2013

                                       No. 12-50621                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

ESPIGMENIO HERNANDEZ, JR.; HECTOR MANUEL ARMENDARIZ, JR.,

                                                  Defendants-Appellants



                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:11-CR-442


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Hector Manuel Armendariz, Jr. was tried for one count of aiding and
abetting and attempted possession of more than 100 kilograms of marijuana
with intent to distribute. He was charged under 18 U.S.C. § 2 and 21 U.S.C. §
§ 841(a)(1), 846. Espigmenio Hernandez, Jr. was tried for one count of aiding
and abetting and possession of more than 100 kilograms of marijuana with
intent to distribute. His charges were under 18 U.S.C. § 2 and 21 U.S.C. §
841(a)(1). A jury convicted both defendants.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50621

      On appeal, Armendariz challenges the sufficiency of the evidence
supporting his conviction. Hernandez challenges the drug quantity attributed
to him as relevant conduct, the admission at trial of evidence of a prior episode
of drug importation and a prior drug conviction, and the fine imposed. We
AFFIRM.
      On December 6, 2011, border patrol agents at a highway checkpoint in far
west Texas, apparently near Big Bend, searched a red dump truck driven by
Sean Russell.    They discovered 606 kilograms of marijuana in a secret
compartment in the truck. Two months earlier, Russell had been stopped at the
same checkpoint, driving the same dump truck, but no drugs were discovered
during that first stop.
      Russell agreed to cooperate with law enforcement by making a controlled
delivery of the marijuana.        Neri Hinojoza, who had created the secret
compartment at the direction of Hernandez in September 2011, accompanied
Armendariz to meet with Hernandez at the location where Russell had left the
truck. Hinojoza witnessed a conversation between Armendariz and Hernandez
in which Armendariz negotiated a payment of $5000 to drive the truck, then saw
Hernandez give Armendariz the key to the truck.
      On December 8, agents watching the parked dump truck saw Armendariz
approach the truck, inspect it, and drive off in it. Agents followed the truck, and
witnessed Armendariz signaling but not changing lanes, taking an exit at the
last second, and circling a gas station parking lot. When agents approached
Armendariz at this gas station, he appeared nervous and made statements
including that he had been in contact with Hernandez, was concerned about
surveillance by police, and was driving the truck to SDS Disposal as part of his
regular job. Agents proceeded to the SDS Disposal site; Hernandez arrived two
hours later. Agents questioned and then arrested Hernandez.



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                                  No. 12-50621

                                  DISCUSSION
I.    Sufficiency of the Evidence against Armendariz
      Armendariz argues there was insufficient evidence to establish he
attempted to possess marijuana with intent to distribute. When a defendant
preserves a challenge to the sufficiency of evidence, this court reviews the denial
of a motion for a judgment of acquittal de novo. United States v. Curtis, 635 F.3d
704, 717 (5th Cir. 2011). We review evidence in the light most favorable to the
jury verdict to determine whether a rational jury could have found guilt beyond
a reasonable doubt. Id. at 717-18.
      To support the conviction for attempt, the government was required to
show that Armendariz acted with the culpability required for commission of the
possession with intent to distribute offense, which was knowledge, and that he
“engaged in conduct which constitutes a substantial step toward commission of
the crime[,] i.e., conduct strongly corroborative of the firmness of the defendant’s
criminal intent.” United States v. Redd, 355 F.3d 866, 872-73 (5th Cir. 2003)
(quotation marks and citation omitted). The mere fact that the drugs were found
in the vehicle driven by Armendariz is not enough to support a conviction;
“additional circumstantial evidence that is suspicious in nature or demonstrates
guilty knowledge is required.” United States v. Martinez-Lugo, 411 F.3d 597,
599 (5th Cir. 2005) (quotation marks and citation omitted).
      The government presented evidence on which the jury could have
rationally based a guilty verdict. First, there was a large quantity of marijuana:
606 kilograms with an estimated value of $1,068,800. A large quantity of drugs
is some evidence supporting a reasonable inference of guilty knowledge, as we
have held that someone oblivious to the presence of a highly valuable quantity
of contraband would not likely be given the task of transporting it. See United
States v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir. 1999). Second, the jury
could use Armendariz’s manifestations of nervousness as some evidence he had

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                                  No. 12-50621

a “consciousness of criminal behavior.” United States v. Diaz-Carreon, 915 F.2d
951, 954 (5th Cir. 1990). Third, the jury could consider the inconsistencies
between Armendariz’s statements and his conduct. Jurors were presented with
the discrepancy between Armendariz’s stated destination and his decision to exit
the highway at a point that was inconsistent with that destination. And they
also heard testimony that Armendariz negotiated a $5000 payment for this trip,
notwithstanding his statement that he was driving the truck as part of his
regular $20-per-hour job. See United States v. Villarreal, 324 F.3d 319, 325 (5th
Cir. 2003). Fourth, the jury could consider Armendariz’s actions, testified to by
a Drug Enforcement Agency (“DEA”) agent, as counter-surveillance measures.
See United States v. Fierro, 38 F.3d 761, 769 (5th Cir. 1994).
       The circumstantial evidence in this case is sufficient to demonstrate
Armendariz “knowingly took a substantial step toward possessing [the drugs]
with the intent to distribute.” Redd, 355 F.3d at 873.
II.    Drug Quantity Attributed to Hernandez at Sentencing
       The district court must find facts relevant to the Sentencing Guidelines by
a preponderance of the evidence. United States v. Greenough, 669 F.3d 567, 576
(5th Cir. 2012). This court reviews factual determinations by the district court
for clear error. Id. “There is no clear error if the district court’s finding is
plausible in light of the record as a whole.” Id. (quotation marks and citation
omitted).
       In making its factual findings, the district court “may consider any
evidence which bears sufficient indicia of reliability to support its probable
accuracy.”    United States v. Nava, 624 F.3d 226, 230-31 (5th Cir. 2010)
(quotation marks omitted).      Sufficient indicia of reliability are generally
contained in presentence investigation reports. Id. at 231. A defendant bears
of the burden of showing that this evidence is “materially untrue, inaccurate or
unreliable.” Id.

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        Hernandez does not dispute that 606 kilograms of marijuana were seized
from the December 6 load for which he was charged.             The Presentence
Investigation Report (“PSR”) states that co-defendant Sean Russell told DEA
agents that on October 21, “he was able to successfully transport the same
amount of marijuana, using the same dump truck.” Additional circumstantial
evidence was offered at trial. Russell described an identical loading procedure
on both dates that included men on horseback bringing bundles of marijuana to
the dump truck, wiping down the bundles with bleach, and stowing them in
secret compartments in the truck. On both occasions, loading took four hours
and Russell was paid $25,000 to drive the truck across the Mexican border into
the United States.      Another defendant, Neri Hinojoza, testified that at
Hernandez’s direction he built the secret compartments prior to both loads.
        Hernandez identifies contrary evidence, including that an October 21
border inspection did not uncover the drugs and testimony that weld marks on
the secret compartment “looked fresh” on December 6. Hernandez also argues
that drug smugglers often make test runs without drugs or with only a small
quantity of drugs.
        The quantity of drugs attributed to a defendant at sentencing need not be
limited to drugs actually seized and can be based on estimate or approximation.
See United States v. Betancourt, 422 F.3d 240, 246-47 (5th Cir. 2005).
Considering the record as a whole, the district court did not clearly err in
attributing 1212 kilograms of marijuana to Hernandez as relevant conduct.
III.    Admission of Prior Bad Acts against Hernandez
        Hernandez challenges the admission of evidence of the October 21
importation of marijuana and a 2003 conviction for possession of marijuana.
Hernandez properly preserved objections to this evidence, therefore we review
the admission under a heightened abuse of discretion standard. United States
v. Adair, 436 F.3d 520, 526 (5th Cir. 2006).

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      Extrinsic evidence under Rule 404(b) of the Federal Rules of Evidence is
admissible when relevant to an issue other than a defendant’s character, such
as “proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(1)-(2). The
evidence is inadmissible when its “probative value is substantially outweighed
by a danger of . . . unfair prejudice” to the defendant. Fed. R. Evid. 403.
      The October 21 load of marijuana was imported with the same modus
operandi as the December 6 load. The similarities were these: both loads were
delivered by men on horseback in Mexico; the bundles were wiped with bleach
before being secreted in hidden compartments of the same dump truck; and the
dump truck was filled with bentonite and driven across the border into the
United States by the same driver.
      The conviction Hernandez challenges is a 2003 prior conviction for
possession with intent to distribute over 100 kilograms of marijuana. This
charge required proof of the same mens rea as the charged offense in this case.
      We have held that “the issue of intent is always material” in a
drug-trafficking case. United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005).
This is so because, as in the charged offense here, the government must prove
that Hernandez acted “knowingly or intentionally.” 21 U.S.C. § 841(a)(1). That
Hernandez intended to possess and distribute marijuana on December 6 was
supported by the evidence that he did so, via an identical modus operandi, on
October 21. That intent is also demonstrated by the fact that Hernandez
manifested the same intent in 2003.
      As to whether the danger of unfair prejudice substantially outweighs the
probative value of the evidence, we accept that as to the October 2011 events,
there was a high degree of similarity with the charged crime as well as a close
temporal proximity. The prejudice may have been strong, but it was not unfair.
The 2003 prior conviction is temporally distant, but we have upheld the

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admission of similar offenses “where the time period in between was as long as
15 and 18 years.” United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006).
       Jury instructions are also relevant to the prejudice determination. The
district court issued two limiting instructions to the jury. The first was given
after the introduction of Hernandez’s prior conviction. The court stated: “You
may not consider this evidence in deciding if the Defendant committed the acts
charged in the indictment . . . .” The second was given before the jury retired.
This time, jurors were told that “the similar acts allegedly committed on other
occasions” could only be considered for the “limited purposes” of “[w]hether the
defendant had the knowledge, state of mind or intent necessary to commit the
crime charged in the indictment . . . .” The general rule in this circuit is that
“evidence of a defendant’s prior conviction for a similar crime is more probative
than prejudicial and that any prejudicial effect may be minimized by a proper
jury instruction.” United States v. Taylor, 210 F.3d 311, 318 (5th Cir. 2000).
       The district court did not abuse its discretion in determining that both the
October 21 load and the 2003 prior conviction satisfied the requirements of Rule
404(b) and were not substantially more prejudicial than probative.
IV.    Hernandez’s Fine
       At sentencing, the district court adopted the PSR and found the Guidelines
fine range was $17,500 to $10 million. Hernandez does not object to the
calculation behind the range. The PSR found “Hernandez does have the ability
to pay a fine on an installment basis.” The district court found Hernandez had
the ability to pay a fine and imposed a fine of $100,000. The written judgment
reflected: “Payment of this sum shall begin immediately.”
       Hernandez argues that ordering the immediate commencement of
payment is at odds with the recommendation in the PSR, and the order should
have been explained. Hernandez concedes, in light of a failure to object at
sentencing, that imposition of the fine is reviewed for plain error. Plain error

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review requires a defendant to demonstrate error, which was plain or obvious,
and show the defendant suffered substantial prejudice from that error. United
States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012). If this court finds a
plain error that affects a defendant’s substantial rights, we “can correct the error
only if [it] seriously affects the fairness, integrity, or public reputation of judicial
proceedings or in order to prevent a manifest miscarriage of justice.” Id.
(quotations omitted).
      The district court properly imposed a fine consistent with the Guidelines
range and with the PSR. While the PSR noted the ability to pay “on an
installment basis,” it made no recommendation as to when payment of a fine
could begin. The PSR recorded Hernandez’s ownership of four vehicles valued
at $65,000. Even where a PSR makes no findings as to the defendant’s ability
to pay, a district court need not make express findings on his ability. See United
States v. Matovsky, 935 F.2d 719, 722 (5th Cir. 1991). The district court imposed
payment to “begin immediately,” addressing a point on which the PSR was
silent. Specific findings are required when a district court adopts the findings
in a PSR but departs from the recommendation. United States v. Fair, 979 F.2d
1037, 1041 (5th Cir. 1992). There was no such departure here. That means
there was no procedural requirement that the district court make specific
findings as to Hernandez’s ability to begin payment immediately.
      The district court’s imposition of the $100,000 fine, payment to begin
immediately, was not in error.
      AFFIRMED.




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