     Case: 11-40843     Document: 00511951670         Page: 1     Date Filed: 08/09/2012




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

                                                                            FILED
                                                                           August 9, 2012
                                       No. 11-40843
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ESEQUIEL AVILA-BUJANOS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:10-CR-985


Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Esequiel Avila-Bujanos appeals his conviction for possessing with intent
to distribute more than 500 grams of cocaine, arguing that the evidence was
insufficient to support the jury’s verdict and that the prosecutor made improper
remarks during closing argument. At trial, the evidence showed that Avila-
Bujanos was caught at a border control checkpoint with cocaine secreted in the
lining of a suitcase. His defense was that he did not know the suitcase contained




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40843

drugs and that he was deceived by an unidentified individual who was allegedly
going to pay him for transporting the suitcase to Houston, Texas.
      Sufficiency of the Evidence
      Avila-Bujanos challenges whether the Government sufficiently proved that
he had knowledge of the cocaine hidden behind the lining of his suitcase.
Because Avila-Bujanos preserved his sufficiency challenge by moving for
judgment of acquittal at the close of both the Government’s case and all the
evidence, we review the denial of his motion de novo. United States v.
Mudekunye, 646 F.3d 281, 285 (5th Cir. 2011). We will uphold the jury’s verdict
if a reasonable trier of fact could conclude from the evidence that the
Government established all elements of the offense beyond a reasonable doubt.
Id. We view the evidence and draw all reasonable inferences in the light most
favorable to the verdict. Id. “The evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except
that of guilt, and the jury is free to choose among reasonable constructions of the
evidence.” United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (quoting
United States v. Burton, 126 F.3d 666, 669–70 (5th Cir. 1997)).
      The Government presented evidence that after he was caught, Avila-
Bujanos changed his version of how he came to possess the suitcase, admitted
that his story was difficult to believe, and told federal agents that he was first
offered $200 to transport the suitcase but convinced the person who gave it to
him to pay him twice that amount. Moreover, the concealed 3,394 grams of
cocaine had a street value of approximately $300,000. This evidence constituted
circumstantial evidence of knowledge from which the jury could reasonably have
reached a conclusion of guilt. See United States v. Villarreal, 324 F.3d 319,
324–25 (5th Cir. 2003) (explaining that a jury can reasonably infer knowledge
based on the high value of the drugs being transported); United States v.
Ortega-Reyna, 148 F.3d 540, 544 (5th Cir. 1998) (noting that inconsistent
statements and implausible explanations are among the types of behavior

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                                    No. 11-40843

recognized as circumstantial evidence of guilty knowledge). Although Avila-
Bujanos offered evidence that an accident in 1997 might have led to a decrease
in his mental acuity and that he scored low on IQ and other intelligence tests,
the jury was not required to accept the theory that Avila-Bujanos could not have
known that the suitcase he was carrying contained drugs due to his diminished
mental state. It was free to choose among reasonable constructions of the
evidence and reject his defense. See Mudekunye, 646 F.3d at 285.
      Prosecutorial Misconduct
      Avila-Bujanos also challenges several remarks made during the
prosecutor’s closing argument that Avila-Bujanos was “smart enough” to open
a bank account and manage his own money, suggesting that he was smart
enough to infer that the bag he agreed to carry contained drugs. While his sister
testified that Avila-Bujanos had his own bank account and that he cashed his
own disability checks, there was no specific evidence that he was the individual
who actually opened the bank account as stated by the prosecutor. Avila-
Bujanos’s sister also testified that his mother at least assisted in managing his
money by giving him an allowance out of the disability checks. Avila-Bujanos
contends that the statements by the prosecutor therefore were not supported by
the evidence and constituted misconduct affecting his substantial rights and the
fairness of the trial.
      Because he did not object to the remarks during closing argument, our
review is for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). To
prevail, Avila-Bujanos must show there was an error that was clear or obvious
and that it affected his substantial rights. Id. If he makes this showing, this
court has the discretion to correct the error, but only if it seriously affected the
fairness, integrity, or public reputation of the judicial proceedings. Id. During
closing argument, the prosecutor may only discuss the evidence that was
admitted and any inferences or conclusions that can reasonably be drawn from
the evidence. United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008). He

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“may not directly refer to or even allude to evidence that was not adduced at
trial.” Id. (internal quotation marks and citation omitted).
      Viewed in the context of the entire closing argument and of all the
evidence, the prosecutor’s remarks, to the extent that they were erroneous, did
not affect Avila-Bujanos’s substantial rights. See United States v. Aguilar, 645
F.3d 319, 325–26 (5th Cir. 2011) (explaining that the court should consider the
potential magnitude of any prejudice of improper comments, whether cautionary
jury instructions were provided, and the relative strength of the other
inculpatory evidence); United States v. Gracia, 522 F.3d 597, 602–03 (5th Cir.
2008) (stating that the prosecutor’s remarks are considered in the context of the
evidence offered). While the prosecutor’s statements were perhaps not entirely
correct, the evidence showed that Avila-Bujanos had managed to live both on his
own and with roommates and that he also had a girlfriend, which the prosecutor
argued meant that Avila-Bujanos’s mental capacity and ability to manage his
personal affairs were not as limited as the defense contended. Moreover, during
both cross-examination and closing argument, the prosecutor called into
question the reliability of the intelligence tests administered to Avila-Bujanos
to challenge the defense that his mental limitations played a role in being
deceived by an unidentified individual asking him to transport the suitcase. The
prosecutor also relied on testimony that Avila-Bujanos’s statements to agents
were inconsistent, his admission that he was able to convince the drug smuggler
to pay a higher fee than that originally offered, and evidence that he was
entrusted with valuable cargo to support an argument of guilt. Finally, the
district court provided a cautionary jury instruction reminding jurors that the
statements of the attorneys are not evidence. Given this context, the remarks
that Avila-Bujanos complains of do not “cast serious doubt on the correctness of
the jury’s verdict.” Gracia, 522 F.3d at 603 (internal quotation marks and
citation omitted).
      The judgment of the district court is AFFIRMED.

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