     Case: 18-41038      Document: 00515173795         Page: 1    Date Filed: 10/25/2019




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

                                    No. 18-41038                           FILED
                                  Summary Calendar                  October 25, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROGELIO VILLARREAL-ESTEBIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:18-CR-316-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       A jury found Defendant-Appellant Rogelio Villarreal-Estebis guilty of
conspiracy to import cocaine, importation of cocaine, conspiracy to possess with
intent to distribute cocaine, and possession with intent to distribute cocaine.
The district court sentenced him within the advisory guidelines range to
concurrent 155-month sentences, to be followed by a five-year term of
supervised release.        On appeal, Villarreal-Estebis challenges both his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-41038       Document: 00515173795   Page: 2   Date Filed: 10/25/2019


                                  No. 18-41038

convictions and the guidelines calculations. He first asserts that the evidence
is insufficient to support his convictions because the Government failed to
prove that he knew about the hidden compartment in his vehicle where the
cocaine was found and that he knew of and participated in an agreement to
violate the drug laws.      Villarreal-Estebis did not renew his motion for a
judgment of acquittal at the close of all the evidence, so we review his claim to
determine “whether there was a manifest miscarriage of justice.”          United
States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001) (internal quotation marks
and citation omitted).
      When illegal drugs are concealed in a hidden compartment, the
Government must present circumstantial evidence, beyond mere control of a
vehicle, that is suspicious in nature or demonstrates guilty knowledge. See
United States v. Gil-Cruz, 808 F.3d 274, 277 (5th Cir. 2015). At trial, the
Government presented ample circumstantial evidence that Villarreal-Estebis’s
story – that the drugs were concealed in the vehicle before he purchased it and
were missed in an X-ray scan three days before the cocaine was discovered – is
implausible. See United States v. Lopez-Monzon, 850 F.3d 202, 208 (5th Cir.
2017). In addition, Villarreal-Estebis’s nervousness when he was referred for
additional inspections at the port of entry, along with his inconsistent
statements referring to the purchase of the Dodge Journey in which the cocaine
was found, further indicate his guilt. See id. at 207, 209. The record thus is
not “devoid of evidence pointing to guilt,” and the evidence is not so tenuous
that we should overturn the conviction. See United States v. McIntosh, 280
F.3d 479, 483 (5th Cir. 2002) (internal quotation marks and citation omitted).
      Villarreal-Estebis further asserts that the trial court’s refusal to permit
him to introduce evidence that a prior owner of the Dodge Journey was
convicted of a drug offense, which occurred after the events giving rise to



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                                  No. 18-41038

Villarreal-Estebis’s convictions, deprived him of his right to present a defense.
We review alleged violations of the Sixth Amendment right to present a
complete defense de novo, subject to review for harmless error, whereas a
challenge to a district court’s ruling on the admissibility of evidence is reviewed
for abuse of discretion. United States v. Skelton, 514 F.3d 433, 438 (5th Cir.
2008); United States v. DeLeon, 170 F.3d 494, 497 (5th Cir. 1999).            The
Government asserts, however, that we should review for plain error because
Villarreal-Estebis did not object on this ground. Here, the district court acted
within its Rule 403 discretion in excluding the evidence relating to the criminal
conviction of the third party; the probative value of the evidence was
outweighed by the potential for jury confusion, given the timing of the incidents
and the intervening ownership of the vehicle. See United States v. Reed, 908
F.3d 102, 113 n.33 (5th Cir. 2018), cert. denied, 139 S. Ct. 2655 (2019), and cert.
denied, 139 S. Ct. 2658 (2019); United States v. Ramos, 537 F.3d 439, 455 (5th
Cir. 2008). There, thus was no constitutional error, plain or otherwise.
      With respect to his sentence, Villarreal-Estebis contends that the district
court erred by imposing a two-level enhancement under U.S.S.G. § 3B1.4 for
using minors to assist in avoiding detection of the offense. Whether Villarreal-
Estebis used his children to avoid detection within the meaning of § 3B1.4
requires a legal conclusion that is reviewed de novo; findings of fact made in
support of that determination are reviewed for clear error. United States v.
Mata, 624 F.3d 170, 175 (5th Cir. 2010). “To trigger the enhancement, a
defendant must take some affirmative action to involve the minor in the
offense”; mere presence is insufficient. United States v. Powell, 732 F.3d 361,
380 (5th Cir. 2013) (internal quotation marks and citation omitted).          The
evidence presented at trial established that Villarreal-Estebis knew that he
would be transporting drugs, and that he could have arranged for all of his



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                                   No. 18-41038

children to stay in the United States rather than taking two of those minors
with him. Villarreal-Estebis left his house knowing that he was going to
commit the subject offenses, so “the act of bringing the [children] along instead
of leaving [them] behind is an affirmative act that involves the minor in the
offense.” Mata, 624 F.3d at 176.
      Finally, Villarreal-Estebis claims that the district court should have
granted a two-level downward adjustment under U.S.S.G. § 3B1.2 because he
was merely a courier and was clearly less culpable than the average
participant. The question whether a defendant is subject to a mitigating-role
adjustment is a factual finding reviewed for clear error. United States v.
Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016).         The instant record
supports a plausible inference that Villarreal-Estebis understood the scope of
the conspiracy, had sufficiently substantial responsibility and discretion in his
criminal actions, and stood to benefit in some way from his acts. § 3B1.2,
comment. (n.3(C)).    Under these circumstances, the district court did not
clearly err in denying such an adjustment. See United States v. Bello-Sanchez,
872 F.3d 260, 264-65 (5th Cir. 2017); Torres-Hernandez, 843 F.3d at 209-10;
United States v. Villanueva, 408 F.3d 193, 204 (5th Cir. 2005).
      The judgment of the district court is AFFIRMED.




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