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

                                                                            FILED
                                                                          August 15, 2008

                                       No. 07-41000                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JUAN BENITO VEDIA

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (5:07-CR-612-1)


Before GARZA and DENNIS, Circuit Judges.*
PER CURIAM:**
       Defendant-Appellant Juan Benito Vedia (“Vedia”) appeals his conviction
and sentence for possession with intent to distribute a quantity in excess of 500
grams of cocaine and for conspiracy to possess with intent to distribute a
quantity in excess of 500 grams of cocaine. We AFFIRM Vedia’s conviction and
sentence for possession with intent to distribute a quantity in excess of 500


       *
         One of the judges of the panel was unable to attend oral argument and did not
participate in this decision. The case is being decided by a quorum. 28 U.S.C. § 46(d).
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41000

grams of cocaine, but, finding insufficient evidence to support Vedia’s conviction
for conspiracy to possess with intent to distribute a quantity in excess of 500
grams of cocaine, we REVERSE Vedia’s conviction on that count and REMAND
for entry of appropriate judgment and for recalculation of Vedia’s monetary
penalties.
                      Factual and Procedural History
      On April 3, 2007, Vedia, a truck driver, was driving his tractor-trailer
north on I-35 near Laredo, Texas. When Vedia stopped at an immigration
checkpoint, a canine alerted to the presence of drugs in a utility box behind the
cab of his truck.     United States Border Patrol Officer Phillip Sullivan
(“Sullivan”) instructed fellow United States Border Patrol Officer Lorenzo Ponce
(“Ponce”) to ask Vedia to exit his vehicle so they could inspect the box. Sullivan
asked Vedia what was in the box, to which Vedia responded “I don’t know.”
Sullivan then asked Vedia multiple times to open the box, and Vedia hesitated
before complying. In the box were five bundles wrapped in black and containing
cocaine. Vedia was arrested and charged on two counts: possession with intent
to distribute cocaine and conspiracy to possess with intent to distribute cocaine.
Vedia pleaded not guilty to both counts, and the case proceeded to a jury trial.
      At the beginning of the trial, the Government and Vedia stipulated that
on or about April 3, 2007 roughly 6.759 kilograms of cocaine were found in a
compartment on Vedia’s tractor, which he owned. Following this stipulation, the
Government presented its case against Vedia primarily through the testimony
of Border Patrol and Drug Enforcement Agency (“DEA”) Officers.
      The government first presented the testimony of Sullivan, who recounted
the details leading to Vedia’s arrest. Sullivan testified that after his canine
alerted to the box on Vedia’s tractor and Ponce asked Vedia to exit the tractor,
Vedia claimed not to know what was in the box and was “really hesitant to
comply” with Sullivan’s three requests that he open the box. The government


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next presented the testimony of Ponce, who corroborated Sullivan’s testimony
that Vedia hesitated to open the box despite three requests from Sullivan.
      The Government also presented the testimony of DEA Agent Diaz (“Diaz”),
who was recognized as an expert in the value of cocaine in Laredo and Dallas.
Diaz testified that, based on the weight of the cocaine recovered from Vedia’s
tractor, the value was at least $55,000. Diaz also testified, in response to the
prosecutor’s questions, about the “business of drug trafficking,” explaining that
cocaine is usually produced in South America and comes into the United States
from Mexico. When the prosecutor asked “is it fair to say that as the drugs are
going north there are multiple people involved in the drug business and they
have all got different jobs . . . .” and “is it fair to say that a person driving [the
drugs] from Point A to Point B, the driver is going to be the person held
responsible for the load . . . ,” Diaz responded affirmatively to both questions.
      Finally, the Government called Border Patrol Agent Flores (“Flores”), who
testified that he arrested Vedia in 2001 at the same I-35 checkpoint involved in
the current case. Flores described the events of the arrest: in 2001 Vedia was
driving a tractor-trailer heading north, a canine alerted to Vedia’s tractor,
marijuana was found hidden inside the tractor, and Vedia was convicted of drug
smuggling.     At the conclusion of Flores’s testimony, the district court
admonished the jury that “the evidence [of Vedia’s past conviction is] being
presented not to establish that the defendant is guilty in this case, but that it
may be considered in connection with some other issue such as the issue of
knowledge.”
      Once the government rested, Vedia moved for acquittal, arguing that the
Government had not proven all elements of the charges beyond a reasonable
doubt. The district court denied the motion, finding there to be sufficient
evidence to submit the case to the jury. Subsequently, Vedia presented his
defense premised on the assertion that he had no knowledge of the drugs found


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in his truck. Vedia testified that he was completely unaware of the cocaine in
the box on his truck. Vedia also stated that he had never used the box in which
the drugs were found and that he was unaware of what the box was intended to
be used for, despite the fact that he had owned the tractor trailer for two years
prior to the arrest.
      Following Vedia’s testimony, the defense rested and once again moved for
acquittal, asserting that the Government had not proven Vedia’s knowledge of
the drugs. Once again the district court denied the motion, and the jury
convicted Vedia on both counts.
      During sentencing, the district court calculated Vedia’s sentencing
guidelines range and pursuant to U.S.S.G. § 3C1.1 increased his offense level by
two levels for obstruction of justice. Though Vedia objected to this enhancement,
the district court held it to be proper, finding “that the defendant did commit
perjury, in particular that he testified that he did not know about the drugs
here, that that was material to the case and that the jury found, based on their
finding of guilty, that he did in fact have knowledge.” The district court then
sentenced Vedia to identical, concurrent terms of 142 months imprisonment for
the two counts against him; this sentence fell within the guidelines range.
      Vedia timely appealed his conviction and sentence, claiming 1) that the
evidence was legally insufficient to support his conviction, 2) that the district
court erred in allowing the government to introduce evidence of his past
conviction for possession with intent to distribute marijuana, 3) that the district
court erred in permitting “drug profiling” testimony from Diaz, and 4) that the
district court erred in imposing a two-point upward sentencing adjustment
under U.S.S.G. § 3C1.1 for obstruction of justice.
                                   Discussion
A. Sufficiency of the Evidence



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       Vedia claims that the evidence at trial was insufficient to support his two
convictions.1 When reviewing for sufficiency of the evidence, we are “highly
deferential to the verdict” and inquire “whether the evidence, when reviewed in
the light most favorable to the government with all reasonable inferences and
credibility choices made in support of a conviction, allows a rational fact finder
to find every element of the offense beyond a reasonable doubt.” United States
v. Harris, 293 F.3d 863, 869 (5th Cir. 2002) (quoting United States v. Asibor, 109
F.3d 1023, 1030 (5th Cir.1997)). Applying this deferential standard to the record
before us, we find the evidence sufficient to support Vedia’s conviction for
possession with intent to distribute cocaine but insufficient to support Vedia’s
conviction for conspiracy to possess with intent to distribute cocaine.
       The elements of possession with intent to distribute cocaine are (1)
knowing (2) possession of cocaine (3) with the intent to distribute. See United
States v. Gracia-Flores, 246 F.3d 451, 454 (5th Cir. 2001). Vedia contends that
the Government presented insufficient evidence to establish the first prong, viz.,
that Vedia’s possession of the cocaine was “knowing,” claiming that the cocaine
found inside the unlocked, exterior utility box of his truck was placed there
without his knowledge. However, the jury found to the contrary, and the
evidence is sufficient to support this conclusion.
       “[P]roof that possession of contraband is knowing will usually depend on
inference and circumstantial evidence. No single piece of circumstantial evidence
need be conclusive when considered in isolation; the question, rather, is whether
the evidence, when considered as a whole, provides a substantial basis for the
jury to find that the defendant’s possession was knowing.” United States v.


       1
          Because he moved for a judgment of acquittal at the close of the Government’s case
and at the close of all the evidence, Vedia properly preserved his challenge to the sufficiency
of the evidence for appellate review. See United States v. Williams, 520 F.3d 414, 419-420 (5th
Cir. 2008).


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                                 No. 07-41000

Miller, 146 F.3d 274, 280-81 (5th Cir. 1998) (citing United States v. Richardson,
848 F.2d 509, 514 (5th Cir. 1988)). Here, the evidence, taken as a whole,
provides a substantial basis for the jury’s finding that Vedia had knowledge of
the cocaine. For example, the jury could have taken the evidence that Vedia
hesitated to comply with repeated requests to open the box as a sign that he
knew that it contained drugs. Likewise, the jury could have found incredible
Vedia’s testimony that he had owned the truck for two years but had never used
the box, did not know what it was used for, and had never looked inside, and the
jury could have construed such an “implausible” or “less-than-credible”
explanation as circumstantial evidence of guilty knowledge. See, e.g., Ortega
Reyna, 148 F.3d 540, 544 (5th Cir. 1998); United States v. Casilla, 20 F.3d 600,
606 (5th Cir. 1994); Diaz-Carreon, 915 F.2d 951, 955 (5th Cir. 1990). The jury
could have also found that the value of the drugs being transported, here
$55,000 worth of cocaine, indicated Vedia’s knowledge of the contraband. See,
e.g., United States v. Gamez-Gonzalez, 319 F.3d 695, 699 (5th Cir. 2003); United
States v. Ramos-Garcia, 184 F.3d 463, 466 (5th Cir.1999). Finally, the jury could
have inferred Vedia’s knowledge of the cocaine based upon Vedia’s prior
conviction, under nearly identical circumstances, for possession with intent to
distribute marijuana . Based on this collection of evidence, the jury could have
reasonably found that Vedia had knowledge of the cocaine.
      However, the evidence against Vedia is insufficient to support the
conspiracy conviction. The essential elements of the conspiracy charge are (1)
an agreement between two or more persons to violate the narcotics laws, (2) a
defendant’s knowledge of the agreement, and (3) his voluntary participation in
that agreement. United States v. Misher, 99 F.3d 664, 667 (5th Cir. 1996).
Though conspiracy may be proven through circumstantial evidence and a
defendant may be convicted of conspiring with unknown persons, the
government must produce some evidence that such alleged coconspirators exist.

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                                  No. 07-41000

See United States v. Hernandez-Palacios, 838 F.2d 1346, 1348-49 (5th Cir. 1988)
(“In this case the four codefendants were acquitted of the conspiracy charge.
While the indictment alleged that there were other unknown conspirators, the
evidence does not support the existence of any agreement or of any other
conspirators with whom an agreement might have been reached.”). In fact, “[i]n
comparable drug conspiracy cases where little to no evidence of other unknown
coconspirators was presented, this Court has reversed the single purported
conspirator’s conspiracy conviction, even though affirming his conviction of the
related substantive offense of possession with intent to distribute.” United
States v. Villasenor, 894 F.2d 1422, 1429 (5th Cir. 1990) (citing United States v.
Onick, 889 F.2d 1425, 1432 (5th Cir. 1989); United States v. Hernandez-Palacios,
838 F.2d 1346, 1349 (5th Cir.1988); United States v. Morgan, 835 F.2d 79, 82
(5th Cir. 1987); United States v. Sheikh, 654 F.2d 1057, 1062-63 (5th Cir.1981),
cert. denied, 455 U.S. 991 (1982)).2
      Here, the government presented no evidence of any coconspirators. Thus,
under the foregoing precedents, the evidence was insufficient to support Vedia’s
conspiracy conviction.
      The government argues that Vedia’s conspiracy conviction should stand
because the jury could have inferred involvement of others based on the quantity
and high value of the cocaine Vedia was carrying. For this proposition, the
government cites United States v. Gutierrez-Farias, 294 F.3d 657, 661 (5th Cir.
2002). However, Gutierrez involved many facts not present here that allowed for
the inference of coconspirators. In Gutierez, the defendant passed through a
checkpoint while driving a pickup truck pulling a trailer carrying a tractor,
which had marijuana hidden in its wheels. See id. at 659. Unlike the instant
case where Vedia owned the vehicle he was driving, in Gutierrez the defendant

      2
        Sheikh, 654 F.2d at 1057, was overruled on other grounds in United States v.
Zuniga-Salinas, 952 F.2d 876 (5th Cir. 1992) (en banc).

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                                  No. 07-41000

owned neither the pickup truck nor the tractor, so the ownership of the vehicles
indicated involvement of other parties. See id. at 661. Also, in Gutierrez the
marijuana was hidden in the wheels of the tractor, which took several tools and
the help of four men to remove, and the 23 bundles of marijuana removed from
the tires weighed a total of 309 pounds. See id. at 659. The complex process and
heavy work of hiding the marijuana in Gutierrez likely necessitated multiple
conspirators, whereas the facts here, a manageable quantity of cocaine hidden
in an easily accessible box, do not necessarily imply the hand of multiple parties.
      In the instant case, the government offered no evidence of the existence of
coconspirators and the facts are insufficient for a rational juror to infer the
participation of others beyond a reasonable doubt, so the evidence cannot
sufficiently support Vedia’s conviction for conspiracy.
B. Admission of Evidence of Vedia’s Prior Drug Conviction
      Vedia argues that the district court erred in admitting evidence of his 2001
conviction for possession with intent to distribute marijuana; however, the
admission of this past conviction evidence, which was limited to demonstrating
Vedia’s knowledge that he was carrying cocaine, was proper under Federal Rule
of Evidence 404(b). Under Rule 404(b), evidence of other crimes, wrongs, or acts
is admissible “as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” U.S. v. Finley, 477 F.3d
250, 263 (5th Cir. 2007). This court reviews a district court’s decision to admit
Rule 404(b) evidence under a heightened abuse of discretion standard. See id.
The admissibility of evidence under Rule 404(b) is analyzed in a two-step
inquiry: first the extrinsic evidence must be relevant to an issue other than
character and second the evidence must possess probative value that is not
substantially outweighed by its potential for prejudice. Id.
      Vedia concedes that the relevancy prong of this test is met but argues that
the prejudicial effect of his past conviction outweighs its probative value.

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Essentially Vedia argues that his prior conviction is not probative of his
knowledge in this case because it is not similar enough to the facts of this
conviction.
      This court sitting en banc has held that the similarity between extrinsic
and charged offenses is a factor that can demonstrate the probative value of
extrinsic evidence. See United States v. Beechum, 528 F.2d 898, 914-15 (5th Cir.
1978) (en banc). Here, the facts of the extrinsic and charged offenses are nearly
identical. In both instances, Vedia picked up his legitimate load and traveled en
route to Dallas via the I-35 checkpoint. Both times Vedia carried close to $300
in cash and was apprehended close to midnight. And in both incidents the drugs
were located in or around the tractor. The only differences between the two
cases are that they involved different drugs, marijuana versus cocaine, and in
2001 the drugs were hidden in the sleeper compartment of Vedia’s truck whereas
in 2007 the drugs were found in a box on the outside of the truck. Vedia argues
that this difference between the 2001 and 2007 cases destroys the probative
value of the 2001 conviction evidence. However, the fact that every aspect of
Vedia’s actions, except the precise location and type of drugs, is identical
between the 2001 and 2007 cases indicates that the 2001 conviction is indeed
probative under Beechum, 528 F.2d at 914-15, and that the district court did not
abuse its discretion in finding as much.
      Moreover, the district court took measures to limit any possible prejudicial
effect of the 2001 conviction by repeatedly admonishing the jury that the 2001
conviction could not be considered as proof of Vedia’s guilt and by giving a
detailed limiting instruction that the 2001 conviction could only be considered
for the limited purpose of determining motive, intent, identity, knowledge,
opportunity, plan, preparation, and the absence of mistake or accident. Even
assuming that admission of the extrinsic evidence may have posed a risk of
undue prejudice, the court’s limiting instructions greatly minimized that risk.

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See United States v. Nguyen, 504 F.3d 561, 574-75 (5th Cir.2007). Accordingly,
the district court did not err in admitting the evidence of Vedia’s 2001 conviction.
C. Diaz’s Testimony
      Vedia argues that the district court erred in permitting Diaz to offer “drug
profiling” testimony. Specifically, Vedia complains that Diaz’s agreement that
“[it is] fair to say that a person driving [the drugs] from Point A to Point B, the
driver is going to be the person held responsible for the load” is the functional
equivalent of Diaz stating that in his expert opinion Vedia knew that the cocaine
was in the box. Because Vedia’s counsel failed to preserve this issue by failing
to object at trial, this court’s inquiry is limited to plain error review, which
requires a finding of (1) error; (2) that is plain, which “at a minimum,” means
“the error is clear under current law,” and (3) that affects the substantial rights
of the defendant. United States v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th Cir.
2003).
      While our circuit precedent indicates that the district court’s admission of
Diaz’s statements might constitute an error that is clear under current law,
Vedia cannot demonstrate that the district court committed reversible plain
error because Vedia cannot demonstrate that the error affected his substantial
rights. In an analogous case, U.S. v. Ramirez-Velasquez, 322 F.3d 868, 879 (5th
Cir. 2003), a prior panel of this circuit found admission of statements similar to
Diaz’s constituted an error that is plain; there the court found error when an
agent “made the generalization, albeit not quite directly, that drivers know they
are carrying drugs.” Id. However, the court in Ramirez found that the error was
not reversible under the plain error standard because it did not affect the
defendant’s substantial rights by impacting the outcome of the case. See id.
Similar to Ramirez, in the instant case admission of Agent Diaz’s testimony
likely constituted error that is plain, but Vedia has not shown that this error
affected his substantial rights. See id. (holding that even when a defendant

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demonstrates plain error, he still bears “the burden of demonstrating that the
error affected his substantial rights, i.e., affected the outcome of the
proceedings”) (citing United States v. Olano, 507 U.S. 725, 734 (1993)). As
discussed supra, even without Agent Diaz’s testimony the jury had sufficient
evidence to convict Vedia of possession with intent to distribute cocaine. Cf.
Gutierrez, 294 F.3d at 663-64 (finding error in admitting drug profiling
testimony to be harmless when “the statements made by [the Agent] constituted
only a small portion of an otherwise strong case”). Vedia makes no showing that
Agent Diaz’s brief statements, in light of the collection of other circumstantial
evidence of Vedia’s knowledge of the cocaine, impacted the outcome of this case.
Thus, Vedia has not met his burden of demonstrating that his substantial rights
were violated, and accordingly he cannot show plain error sufficient to warrant
reversal.
D. Upward Guidelines Adjustment for Obstruction of Justice
      Finally, Vedia alleges that the district court erred in sentencing him
because it did not articulate a sufficient factual basis to support a two-level
upward guideline adjustment for obstruction of justice. Because counsel for
Vedia issued a contemporaneous objection, this court reviews the district court’s
application of the guidelines de novo. United States v. Juarez-Duarte, 513 F.3d
204 (5th Cir. 2007).
      Before applying a sentencing enhancement resulting from a defendant’s
trial testimony, “a district court must review the evidence and make
independent findings necessary to establish a willful impediment to or
obstruction of justice, or an attempt to do the same . . . .” United States v.
Dunnigan, 507 U.S. 87, 95 (1993). Contrary to Vedia’s argument, the district
court made such a finding. The district court noted that “in this case, where it’s
an issue of really the basic element here of knowledge, and he flat out denied
having any knowledge, and the jury found otherwise,” and that “the defendant

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did commit perjury, in particular that he testified that he did not know about the
drugs here, that that was material to the case and that the jury found, based on
their finding of guilty, that he did in fact have knowledge.” Thus, the district
court found that Vedia’s denial of knowledge was tantamount to obstruction of
justice or perjury.     In similar situations we have upheld sentencing
enhancements based on defendants’ untruthfulness regarding material issues
at trial, see, e.g., United States v. Creech, 408 F.3d 264, 271 (5th Cir. 2005)
(upholding an enhancement based on the district court’s finding that “the
Defendant did testify falsely with regard to the conspiracy aspect of the case” by
claiming that he played no role in the conspiracy); United States v. Morris, 131
F.3d 1136, 1140 (5th Cir.1997) (upholding the district court’s application of an
enhancement for perjury where the district court had found that the defendant
“was untruthful at trial with respect to material matters in this case”), and like
in those cases, here we conclude that the district court did not err in applying
the upward guideline adjustment based on a finding that Vedia testified falsely.
                                  Conclusion
      Because we find insufficient evidence to support Vedia’s conviction for
conspiracy, we REVERSE that conviction and REMAND for entry of appropriate
judgment and recalculation of monetary penalties.          However, finding no
reversible error otherwise, we AFFIRM Vedia’s conviction and sentence for
possession with intent to distribute cocaine.




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