     Case: 11-40781      Document: 00512485511         Page: 1    Date Filed: 12/31/2013




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

                                                                                     FILED
                                    No. 11-40781                             December 31, 2013
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

RENE HUERTA, JR.,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10-CR-1396-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
       Rene Huerta, Jr., contests his jury-trial conviction of being a felon in
possession of ammunition affecting interstate commerce, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2) (count one), and of attempting to export a
defense article from the United States to Mexico without a license, in violation
of 22 U.S.C. § 2778(b)(2), (c) and 22 C.F.R. § 121.1 (count two). The district




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 11-40781

court sentenced Huerta to concurrent terms of 120 months’ imprisonment as
to count one and 136 months’ imprisonment as to count two.
      Huerta contends the evidence was insufficient to prove he knowingly
possessed the ammunition found in a hidden compartment of the vehicle he
was driving. Because Huerta preserved the sufficiency issue, see United States
v. Allison, 616 F.2d 779, 784 (5th Cir. 1980), we must determine whether,
viewing the evidence in the light most favorable to the verdict, a rational juror
could have found the evidence established the essential elements of the offense
beyond a reasonable doubt, United States v. Lopez-Moreno, 420 F.3d 420, 437-
38 (5th Cir. 2005).
      The conviction requires proof Huerta knowingly possessed the
ammunition. See § 922(g)(1); United States v. Meza, 701 F.3d 411, 421-22 (5th
Cir. 2012). “[T]o satisfy the knowledge element in hidden compartment cases,
this Court has normally required additional ‘circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge’”. United States v.
Mudd, 685 F.3d 473, 477 (5th Cir. 2012) (quoting United States v. Resio–Trejo,
45 F.3d 907, 911 (5th Cir. 1995)) (alteration added).       Huerta’s conflicting
statements, implausible accounts, possession of large amounts of cash, and
nervousness, “when considered as a whole, provide[] a substantial basis for the
jury to find [his] possession was knowing”. United States v. Miller, 146 F.3d
274, 281 (5th Cir. 1998) (alterations added).
      Huerta raises his next two challenges for the first time on appeal;
therefore, review is only for plain error. E.g., United States v. Randall, 342 F.
App’x 991, 992 (5th Cir. 2009) (citing United States v. Castro-Trevino, 464 F.3d
536, 541 (5th Cir. 2006)). For reversible plain error, Huerta must show a clear
or obvious forfeited error that affected his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion



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                                  No. 11-40781

to correct the error, but should do so only if it seriously affects the fairness,
integrity, or public reputation of the proceedings. See id.
      First, Huerta contends counts one and two were constructively amended
by the jury instructions. “A constructive amendment occurs when the trial
court through its instructions . . . allows proof of an essential element of a crime
on an alternative basis permitted by the statute but not charged in the
indictment”. United States v. Arlen, 947 F.2d 139, 144 (5th Cir. 1991) (citations
and internal quotation marks omitted). The district court followed our pattern
jury instructions with respect to counts one and two. Thus, Huerta has not
shown error. See United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009)
(“[A] district court does not err by giving a charge that tracks this [c]ircuit’s
pattern jury instructions and that is a correct statement of the law”.)
(alteration added).
      Second, Huerta contends he was entitled to an entrapment instruction.
Although Huerta claims he was not predisposed to commit the offenses, he does
not claim the Government induced him to commit them. Accordingly, he has
not demonstrated error in connection with the district court’s failure to provide
an entrapment instruction. See United States v. Thompson, 130 F.3d 676, 689
(5th Cir. 1997) (“Entrapment . . . requires a defendant to show he was induced
to commit a criminal act by a government agent and that he was not
predisposed to commit the act without the inducement”.) (emphasis added).
      Finally, Huerta contends his trial attorney performed ineffectively by
failing to request an entrapment instruction and by failing to advise him
regarding an offered plea agreement. “[T]he general rule in this circuit is that
a claim for ineffective assistance of counsel cannot be resolved on direct appeal
when the claim has not been raised before the district court since no
opportunity existed to develop the record on the merits of the allegations.”



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                                No. 11-40781

United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (alteration in
original) (citation and internal quotation marks omitted). Because “we cannot
fairly evaluate the claim[s] from the record”, we decline to consider them,
without prejudice to Huerta’s right to raise them in a subsequent proceeding,
such as pursuant to 28 U.S.C. § 2255. United States v. Gulley, 526 F.3d 809,
821 (5th Cir. 2008).
      AFFIRMED.




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