                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 1, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 05-41371
                           Summary Calendar


UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

ROBERTO DIAZ-RIVERA

                      Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 2:05-CR-377-ALL
                      --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Roberto Diaz-Rivera (Diaz) was convicted by a jury of

possession with intent to distribute approximately 5,763

kilograms of marijuana.    He was sentenced to an 190-month term of

imprisonment and to a five-year period of supervised release.

Diaz gave timely notice of his appeal.

     Diaz was arrested after marijuana was discovered in the

trailer of the tractor/trailer he was driving through the Border

Patrol checkpoint, at Falfurrias, Texas.      Diaz contends that,

because the marijuana was hidden in the trailer, 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this opinion should not be published and is not precedent except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.
                           No. 05-41371
                                -2-

court should have instructed the jury that knowing possession of

the tractor/trailer was insufficient to prove that he knew that

the trailer contained marijuana.

     In exercising its “broad discretion in fashioning the

charge,” the district court must determine whether the charge is

“legally accurate and factually supportable; the court may not

instruct the jury with a charge that lacks an evidentiary

predicate.”   United States v. Moreno, 185 F.3d 465, 476 (5th Cir.

1999).   In this case, a constructive-possession instruction was

supported by the facts because the marijuana was concealed from

view and did not emit a noticeable odor.   See PATTERN CRIM. JURY

INSTR. 5TH CIR. 1.31 (West 2001) (Note); United States v.

Pennington, 20 F.3d 593, 598 (5th Cir. 1994).

     Because the Government introduced substantial evidence

showing Diaz’s guilty knowledge, however, any error on the part

of the district court in refusing to instruct the jury that it

could not find that Diaz knew of the drugs based on his control

of the vehicle alone was harmless.   See United States v.

Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir. 1988).    Diaz’s

nervousness, inconsistent statements, and implausible stories

provided ample additional evidence of his guilty knowledge.     See

Pennington, 20 F.3d at 598.   The judgment is AFFIRMED.
