     Case: 09-50043     Document: 00511066716          Page: 1    Date Filed: 03/30/2010




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

                                                  FILED
                                                                           March 30, 2010
                                     No. 09-50043
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

JAIME TREJO-MATA,

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:07-CR-3285-1


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Jaime Trejo-Mata was convicted in the United States District Court for the
Western District of Texas for possession with intent to distribute over 1,000
kilograms of marijuana and for conspiracy to possess with intent to distribute
over 1,000 kilograms of marijuana.
        On appeal, Trejo-Mata argues that the evidence was insufficient to support
his conviction for possession with intent to distribute, but he presents no
argument on the conspiracy count. His claim is that the evidence did not show

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50043   Document: 00511066716 Page: 2        Date Filed: 03/30/2010
                                No. 09-50043

that he had knowledge of the marijuana that was in the trailer compartment of
the truck he was driving. He also contends that the district court erred by
sentencing him to 144 months of imprisonment, which was an upward variance
from the advisory guidelines range of 120-121 months of imprisonment.
      Because Trejo-Mata properly preserved the sufficiency issue in the district
court, our review of his properly presented appellate arguments is de novo.
United States v. Harris, 420 F.3d 467, 470 (5th Cir. 2005). He does not present
any appellate argument challenging the sufficiency of the evidence to support his
conspiracy conviction, and therefore we do not review that evidence.
      The evidence to support his conviction for possession under 21 U.S.C. § 841
must show a (1) knowing, (2) possession of a controlled substance, (3) with the
intent to distribute. United States v. Miller, 146 F.3d 274, 280 (5th Cir. 1998).
      Evidence of Trejo-Mata’s knowledge that the trailer contained marijuana
arises from inferences. He drove his truck to the lot of the transportation
company for whom he worked, and there picked up a trailer containing air
conditioning equipment. He later put a lock on the trailer, even though it had
been sealed by the manufacturer of the equipment and by the trucking company
before he picked up the trailer.    There was evidence that the value of the
marijuana in the trailer of the rig he was driving was over two million dollars.
There was testimony that he was nervous when being questioned at the
checkpoint and lied about his citizenship. The seal on the trailer he was hauling
did not match that on the bill of lading, supporting the inference that the door
was opened, then closed and resealed. Trejo-Mata had three cell phones in the
vehicle. The cell phone numbers and documents he possessed tied him to a
group of people who were involved in transporting drugs in a similar fashion.
This kind of evidence has been held to create inferences of knowledge. See
United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003); United States v.
Martinez-Moncivais, 14 F.3d 1030, 1035 (5th Cir. 1994).



                                       2
   Case: 09-50043   Document: 00511066716 Page: 3        Date Filed: 03/30/2010
                                No. 09-50043

      His control of the truck was sufficient to establish possession of the
marijuana, and the amount of marijuana involved supported a finding that it
was intended for distribution. See United States v. Jones, 185 F.3d 459, 464 (5th
Cir. 1999); United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994).
      Accordingly, the evidence was sufficient to support Trejo-Mata’s conviction
for possession with intent to distribute marijuana.
      Because Trejo-Mata did not challenge the reasonableness of the district
court’s sentence below, we review this issue for plain error. United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). The district court
stated that it was imposing an upward variance to address the objectives in 18
U.S.C. § 3553(a)(2) and in light of Trejo-Mata’s lack of remorse. The court stated
that the advisory guidelines range was not sufficient to reflect the seriousness
of the offense, to promote respect for the law, or to deter Trejo-Mata from re-
offending. The court determined that the sentence imposed would protect the
safety and welfare of the community and would promote respect for the law.
      Lack of remorse is a fact that may support an upward variance. See
United States v. Douglas, 569 F.3d 523, 527 (5th Cir. 2009). The district court
was in the best position to judge the defendant and the circumstances of the
offense, the court considered the appropriate sentencing factors, and articulated
reasons why the sentence imposed was sufficient to serve those purposes. See
Gall v. United States, 552 U.S. 38, 51-52 (2007); United States v. Williams, 517
F.3d 801, 812-13 (5th Cir. 2008).
      Trejo-Mata has not shown that the district court plainly erred in imposing
his sentence. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      AFFIRMED.




                                        3
