     Case: 16-40151      Document: 00514124787         Page: 1    Date Filed: 08/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-40151                                   FILED
                                  Summary Calendar                           August 21, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                   Clerk


                                                 Plaintiff-Appellee

v.

JAMES MARCUS MALONE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-435-2


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       James Marcus Malone appeals his conviction and sentence for
conspiracy to import methamphetamine, in violation of 21 U.S.C. § 963;
importation of methamphetamine, in violation of 21 U.S.C. § 952(a); conspiracy
to possess methamphetamine with intent to distribute, in violation of 21 U.S.C.
§ 846; and possession of methamphetamine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1). On appeal, he argues that the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40151    Document: 00514124787     Page: 2   Date Filed: 08/21/2017


                                 No. 16-40151

abused its discretion by instructing the jury on deliberate ignorance because
the evidence did not raise an inference of willful blindness to the illegal
activities. Therefore, Malone contends that the instruction allowed the jury to
convict on a lesser standard than knowledge beyond a reasonable doubt.
      This court reviews challenges to jury instructions for abuse of discretion.
United States v. Rios, 636 F.3d 168, 171 (5th Cir. 2011). In reviewing a district
court’s deliberate ignorance instruction, this court considers the evidence and
draws all reasonable inferences in the light most favorable to the Government,
United States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007), and it takes into
account the totality of the evidence, United States v. Lara-Velasquez, 919 F.2d
946, 952 (5th Cir. 1990).     This court will uphold a deliberate ignorance
instruction if it is supported by sufficient evidence.     See Lara-Velasquez,
919 F.2d at 951. An error in giving the instruction is harmless if substantial
evidence showing actual knowledge of criminal conduct was adduced at trial.
United States v. McElwee, 646 F.3d 328, 341 (5th Cir. 2011).
      Viewing the evidence in the light most favorable to the Government, the
deliberate ignorance instruction was proper. See Nguyen, 493 F.3d at 619. The
evidence presented at trial indicates that Malone was subjectively aware of a
high probability of illegal conduct and that he purposely avoided learning of
the illegal conduct. See id. Even if the district court abused its discretion by
giving the instruction, any error was harmless because the evidence adduced
at trial was sufficient to show Malone’s actual knowledge of the criminal
activity. See McElwee, 646 F.3d at 341.
      Accordingly, the judgment of the district court is AFFIRMED.




                                       2
