     Case: 12-10905       Document: 00512315833           Page: 1    Date Filed: 07/22/2013




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

                                                                              FILED
                                                                             July 22, 2013
                                     No. 12-10905
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE CASTILLO,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-45-3


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Jose Castillo was found guilty by a jury of one count
of distribution and possession of methamphetamine with intent to distribute
on or about January 26, 2012 (the January 26 transaction). The district court
sentenced him to 264 months in prison, and he now appeals. Finding no error,
we affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-10905

      Castillo first contends that the district court erred by giving the jury a
deliberate-ignorance instruction. We review for an abuse of discretion. See
United States v. Hernandez, 92 F.3d 309, 311 (5th Cir. 1996). A deliberate-
ignorance instruction is proper if the defendant alleges a lack of guilty
knowledge and the trial evidence supports a reasonable inference of deliberate
ignorance. United States v. Scott, 159 F.3d 916, 922 (5th Cir. 1998).
Specifically, the evidence must raise the inference that: (1) the defendant was
subjectively aware of a high probability of illegal conduct and “(2) the defendant
purposely contrived to avoid learning of the illegal conduct.” Id.
      Castillo concedes that he alleged a lack of guilty knowledge.          The
evidence showed that on January 20, Castillo was stopped while driving a black
Chevrolet Avalanche. Castillo acted nervously and touched the visor as the
officer approached.    The officer found plastic bags of methamphetamine
wrapped in paper above the visor. Then, on January 26, Castillo delivered a
foil-wrapped package of methamphetamine to an undercover officer in a
parking lot at Montelongo’s request. He did not hand the package to the officer
or even touch it; he merely said, “[T]here it is,” and pointed to the package on
the passenger seat. He then drove away in a manner suggesting that he was
trying to see if he was being followed.        Next, on February 6, he sold
methamphetamine at Montelongo’s request to a customer at Montelongo’s
house. These facts amply support an inference that Castillo was subjectively
aware of a high probability that the January 26 delivery involved
methamphetamine. United States v. Soto-Silva, 129 F.3d 340, 345 (5th Cir.
1997).   In addition, the “circumstances of [Castillo’s] involvement in the
criminal offense [were] so overwhelmingly suspicious that [his] failure to
question the suspicious circumstances” supports an inference that he contrived




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                                  No. 12-10905

to avoid guilty knowledge. United States v. Lara-Velasquez, 919 F.2d 946, 953
(5th Cir. 1990). There was no abuse of discretion.
      Castillo challenges the sufficiency of the evidence that, as to the January
26 transaction, he had knowledge of the methamphetamine, an element of both
possession with intent to distribute and distribution. United States v. Gourley,
168 F.3d 165, 169 (5th Cir. 1999); United States v. Sotelo, 97 F.3d 782, 789 (5th
Cir. 1996). We review the evidence to determine whether “a rational jury could
have found the essential elements of the offenses beyond a reasonable doubt.”
United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006). As previously
discussed, there was significant if not overwhelming evidence of Castillo’s
deliberate ignorance. The jury was free to consider that evidence as proof of
guilty knowledge. See Lara-Velasquez, 919 F.2d at 952; see also United States
v. Demmitt, 706 F.3d 655, 673 (5th Cir. 2013), pet. for cert. filed (May 2, 2013)
(No. 12-10116).
      In his final allegation of error, Castillo challenges his sentence on two
grounds. First, he contends that the district court erred by imposing a two-
level enhancement pursuant to § 2D1.1(b)(5) of the United States Sentencing
Guidelines, which applies if, inter alia, the offense involved importation of
methamphetamine. Second, Castillo asserts that the district court erred in its
determination of drug quantity.
      We review the application of the Guidelines de novo and review the
sentencing court’s factual findings for clear error. United States v. Serfass, 684
F.3d 548, 550 (5th Cir.), cert. denied, 133 S. Ct. 623 (2012). Absent rebuttal
evidence or a showing that the presentence report (PSR) was unreliable, the
district court is free to adopt the PSR’s factual findings, so long as they had an
evidentiary basis with sufficient indicia of reliability. See United States v.
Rose, 449 F.3d 627, 633 (5th Cir. 2006).


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                                  No. 12-10905

        The PSR and the addendum thereto stated that Montelongo led a drug
trafficking organization that distributed methamphetamine in the Fort Worth
area.     Arthur Luna and Joshua Baggett supplied Montelongo with
methamphetamine that was imported from Mexico, which Castillo concedes.
The methamphetamine was stored at Montelongo’s house, to which Castillo
had access, and was kept in a safe, to which Castillo had a key. Castillo
delivered methamphetamine to an undercover officer at Montelongo’s request.
Castillo did not dispute or rebut these factual determinations. There was no
error in the determination that Castillo’s offense involved importation of
methamphetamine. See United States v. Rodriguez, 666 F.3d 944 (5th Cir.),
cert. denied, 132 S. Ct. 2115 (2012).
        With respect to drug quantity, Castillo contends that he was involved in
only two of Montelongo’s small transactions, so that the sentencing court erred
in attributing transactions conducted by Montelongo and others in the
organization to him as relevant conduct. See U.S.S.G. § 1B1.3(a)(1)(A), (B) &
comment. (n.2); U.S.S.G. § 2D1.1, comment. (n.12). As noted, the PSR and the
addendum specified that Castillo had access to Montelongo’s house and a key
to the safe where the methamphetamine was stored. Witness statements
indicated that Castillo and Montelongo were partners in trafficking
methamphetamine in Fort Worth and that Castillo worked at times delivering
methamphetamine for Montelongo. Further, as Montelongo did not like to
handle the drugs, most transactions were conducted by his wife and Castillo.
Castillo did not offer any rebuttal evidence or demonstrate that the
information in the PSR was unreliable. See Rose, 449 F.3d at 633. The district
court did not err in determining drug quantity.
        The judgment of the district court is AFFIRMED.




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