     Case: 09-41082    Document: 00511631987         Page: 1     Date Filed: 10/13/2011




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

                                                                           FILED
                                                                         October 13, 2011

                                      No. 09-41082                        Lyle W. Cayce
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

GERARDO GILBERTO RIVERA,

                                                  Defendant-Appellant



              Appeal from the United States District Court for the
                          Southern District of Texas
                            USDC No. 2:04-cr-530


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
        In this criminal appeal, Defendant-Appellant Gerardo Gilberto Rivera
challenges his conviction and sentence for possession with intent to distribute
methamphetamine. For the following reasons, we AFFIRM.
                      FACTUAL AND PROCEDURAL BACKGROUND
        On September 22, 2004, Rivera was indicted on one count of possession
with intent to distribute more than 500 grams of methamphetamine in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A). A three-day jury trial commenced on

       *
        Pursuant to FIFTH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set forth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 FIFTH CIRCUIT RULE 47.5.4.
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                                  No. 09-41082

November 15, 2004.        The majority of the government’s case consisted of
testimony by Border Patrol agents and Drug Enforcement Administration Task
Force (“DEA”) officers.     Beyond Rivera himself, Rivera’s nineteen-year-old
daughter Sonja, Sonja’s boyfriend, and a character witness testified for the
defense.
      The evidence presented at trial was as follows: In the early morning of
Sunday, September 5, 2004, Rivera drove a 1998 white GMC Yukon (“Yukon”)
to the Border Patrol checkpoint in Sarita, Texas. Rivera was accompanied by his
cousin-in-law, Carlos Soto-Torres (“Soto”). Border Patrol Agents Martinez and
Salas were on duty at the Sarita checkpoint when Rivera arrived at
approximately 3:45 a.m. In response to routine questions, Rivera stated that he
was a United States citizen, that the Yukon belonged to him, and that he was
traveling to Houston to purchase vehicles. Agent Martinez grew suspicious of
Rivera because he avoided eye contact and had a “death grip” on the steering
wheel.
      After Rivera gave Agent Martinez permission to inspect the vehicle, Agent
Martinez opened the rear driver’s side door and looked under the seat. He
observed that the bolt that secured the rear seat to the floor had tool markings.
Meanwhile, Agent Salas, a canine handler, conducted a “free-air sniff” of the
Yukon with his dog. The dog alerted to the presence of drugs at the rear
undercarriage of the Yukon. Agent Martinez then got permission from Rivera
to search his car in the secondary inspection area.
      The agents observed that the Yukon was altered in several ways. The
underside rear of the Yukon had a shiny unpainted and un-scratched area, had
new screws, and the body of the vehicle had been raised from the frame. Upon
lifting the carpet in the cargo area of the Yukon, Agent Salas saw fresh silicone
or caulking, and noticed a chemical smell. He discovered a compartment
underneath the floorboard behind the rear seat, accessible through a false floor

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and trap door.        Inside the compartment were thirty-seven bundles of
methamphetamine,          worth     $1.7   million,    packed     in   Mexican-made
Tupperware-type containers wrapped in plastic. Also inside the Yukon was a
toolbox with two of three tools necessary to access the trap door; the third tool
was readily available at a hardware or auto parts store.
      After the agents’ discovery of the compartment, Defendant-Appellant
Rivera and Soto were placed under arrest. Border Patrol Agent Solis, a twelve-
year veteran of the U.S. Border Patrol and a supervisor at the Sarita checkpoint,
interviewed Rivera, but no recording or written statement was made.1 Rivera
told Agent Solis that he was en route to Houston to purchase cars and that he
had no knowledge of the drugs in the Yukon. In Agent Martinez’s presence,
Rivera told Agent Solis that he had personally purchased the Yukon in Dallas
about a month ago, but that he could not remember the name or address of the
car lot or dealership. When Agent Solis told Rivera that the DEA would
subpoena the seller of the vehicle to identify the purchaser, Rivera stated that
he did not actually personally travel to Dallas to purchase the vehicle. Rather,
his friend Vicente Flores (“Vicente”), who lived in Mexico, had purchased the
vehicle in Dallas and brought it to Brownsville for Rivera.
      In the evening of the same day, DEA Officers Bussey and Pacheco and
Border Patrol Agent Baron took over the investigation and questioned Rivera,
without making a recording or preparing a written statement.2 Officer Bussey
testified at trial that Rivera gave the following version of events during this
interview: Rivera told them that a month earlier he had purchased the Yukon
from his friend Vicente. He denied that he had told Agent Solis that he had gone
to Dallas and purchased the Yukon himself. Rivera explained that Vicente was

      1
          The interview was conducted in Spanish.
      2
        Officer Bussey conducted the interview in English while Officer Pacheco and Agent
Baron translated into Spanish.

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a used car salesman, and that Rivera had offered to purchase Vicente’s Yukon
in July 2004 for $6,900.3 Vicente registered the Yukon in Rivera’s name and
delivered it to Rivera in Brownsville. According to the agents’ testimony at trial,
though Rivera had told Agent Solis that Vicente’s last name was Flores, to
Officer Bussey he stated that he did not know Vicente’s last name, phone
number, or address.
       The agents were skeptical of Rivera’s claim that he was en route to pick
up a car with the Yukon because the vehicle lacked the standard equipment for
that business – a tow bar. Additionally, Officer Bussey testified that Rivera
could not provide the name or location of the vehicle auction or parking lot to
which he was en route. Agents Martinez and Solis, and Officers Bussey and
Pacheco all testified that they found Rivera’s demeanor suspicious during
questioning.
       When he took the stand at trial, Rivera testified that he did not agree to
a drug transaction with Vicente and that he did not know drugs were in his
vehicle. Rivera denied telling the officers that he had bought the Yukon in
Dallas. Rather, he insisted that he told them that the vehicle was purchased in
Dallas and then brought to Brownsville. Rivera also testified that he gave
Vicente’s last name to the officers; that he told them the location of the lot where
he was to meet Vicente in Houston – a parking lot by a Days Inn; that he had
Vicente’s number in his phone, but the screen had broken; and that he knew
where Vicente lived, but not the address. Regarding his demeanor at the
checkpoint, he denied that he had acted nervously and averted eye contact.
       Rivera’s statements to the agents and at trial regarding his whereabouts
on September 4 were inconsistent. He had told Officer Bussey that he drove to


       3
        Rivera owed Vicente a balance of $450, but could not explain how he would contact
him, other than to meet him at a parking lot in Houston that day as he said they had planned
to do.

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Mexico on September 4, 2004 in his red Plymouth Breeze, leaving his home in
Brownsville at about 10:00 a.m. and returning at about 10:30 p.m. that same
day. At trial, however, he testified that on September 4, 2004, he left his home
around 11:00 a.m. or noon and drove his Breeze to a McAllen car lot, where he
purchased a car. He said that he returned home around 3:30 p.m. or 4:00 p.m.
After 5:00 p.m., Rivera’s son and Sonja’s boyfriend borrowed the Yukon to go to
the mall, according to both Rivera’s and Sonja’s testimony.
       Certain aspects of Rivera’s version of events did remain consistent. He
repeatedly said that he received the Yukon and the registration papers from
Vicente sometime between August 7 and 11, and that about two weeks later, he
re-registered the Yukon and changed its license plates in Brownsville. By all
accounts, he also consistently stated that Vicente had borrowed the Yukon on
Thursday, September 2, 2004, and returned it on Friday, September 3, 2004, at
around 6:00 p.m. During questioning by Officer Bussey and at trial, Rivera said
that between 5:00 p.m. and 6:00 p.m. on September 4, he drove the Yukon to an
autoparts store in Brownsville.4 In addition, Rivera’s statements and Soto’s
testimony were consistent that he picked up Soto in Mexico around midnight on
September 4, and then returned to his home in Brownsville, where they got into
the Yukon.
       At the close of the government’s case, and again after the government’s
rebuttal, Rivera moved for judgment of acquittal based on insufficiency of the
evidence. The district court denied the motion both times. After deliberating for
one-and-a-half days, and sending five jury notes, the jury found Rivera guilty as
charged.
       Within seven days of the jury verdict, Rivera filed a motion for new trial
pursuant to Fed. R. Crim. P. 33(b)(2), based on the prosecutor’s erroneous

      4
       This despite Rivera having also told Officer Bussey that he was in Mexico all day on
September 4.

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statement at closing argument that the evidence proved Rivera had not
registered the Yukon in Brownsville.
      On June 9, 2005 the district court sentenced Rivera to 235 months in
prison followed by five years of supervised release. At the sentencing hearing,
Rivera’s counsel argued that the Pre-sentence Report’s (“PSR) recommended
sentence was greater than necessary to meet the goals of sentencing.
      Rivera appealed his conviction and sentence on June 17, 2005, but this
Court dismissed his appeal for failure to timely pay the docketing fee. On
October 21, 2005, the district court issued a written order stating its reasons for
denying Rivera’s motion for a new trial.
      In February of 2006, the district court sent notice that the trial exhibits
would be destroyed unless the parties removed them by February 28. The
government withdrew its exhibits, but defense counsel did not respond, and the
defense’s trial exhibits were destroyed.
      Rivera filed a pro se petition for a writ of habeas corpus on April 24, 2009,
arguing that his trial counsel had been ineffective for failing to prosecute his
appeal and failing to inform him that his appeal had been dismissed. After an
evidentiary hearing, the district court re-entered its judgment against him and
dismissed his petition without prejudice. Rivera timely appealed the dismissal
of his petition for a writ of habeas corpus. On March 31, 2010, this Court
granted Rivera’s unopposed motion to remand the case to the district court for
the purpose of reconstructing the missing trial exhibits. The parties were unable
to reconstruct any of the defendant’s trial exhibits, but did manage to do so for
some of the government’s trial exhibits.5




      5
        While the government’s trial exhibits had not been destroyed, many of them were
missing when Rivera filed his motion for a writ of habeas corpus.

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                                  No. 09-41082

                                    ANALYSIS
      Rivera makes four arguments in support of his appeal. First, he maintains
that the destruction of a substantial portion of the trial exhibits prior to this
appeal, including all of the defense exhibits, requires reversal of his conviction
and a new trial. Second, he argues that the evidence was insufficient to sustain
a conviction. Third, he contends that the district court abused its discretion
when it denied Rivera’s motion for a new trial based on the prosecutor’s
misstatement of evidence outside the record during closing arguments. Fourth,
he claims that the district court imposed an unreasonable sentence. This Court
will address Rivera’s arguments in turn.
                          1. Destruction of Exhibits
      Rivera contends that the omission of all nine defense exhibits and twenty-
five government exhibits constitutes “substantial and significant” omissions from
the record, requiring reversal. The government responds that the absence of
these exhibits is not a substantial or significant omission in the record because
the record still contains the information found in the missing exhibits. The
government’s argument prevails.
      If a defendant is represented by different counsel on appeal than at trial,
the absence of a “substantial and significant portion of the record” is sufficient
to warrant reversal for a new trial. United States v. Selva, 559 F.2d 1303, 1306
(5th Cir. 1977) (reversing conviction because the record did not contain a
transcript of the closing arguments made by defense or government counsel at
trial, and information about the closing arguments was unavailable to the
attorney on appeal). “There can be no substantial and significant omissions from
a reconstructed record if, taken as a whole, it accords effective review on appeal.”
United States v. Preciado-Cordobas, 981 F.2d 1206, 1213 (11th Cir. 1993). “We
do not advocate a mechanistic approach to situations involving the absence of a
complete transcript of the trial proceedings. We must, however, be able to

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                                  No. 09-41082

conclude affirmatively that no substantial rights of the appellant have been
adversely effected by the omissions from the transcript.” Selva, 559 F.2d at
1306. Litigants in such a position “are under no burden to show specific
prejudice in order to obtain relief.” Id. at 1305 (explaining no showing of
prejudice is required since the new attorney on appeal cannot tell if an error was
made during the earlier, unrecorded proceedings).
      In this case, the nine missing defense exhibits consist of photographs of
the Yukon and its secret compartment. The twenty-five missing government
exhibits include a stipulation of laboratory reports; photographs of the stacked
drugs, the truck and its compartment, and relevant tools and hardware; the
actual tools and hardware; and a chart of the Border Patrol area.            The
reconstructed record contains several photographs of the Yukon’s cargo area and
compartment, and thus the absence of those Rivera exhibits is not significant.
In addition, Rivera acknowledges that defense counsel cross-examined the
agents extensively on the hidden compartment and the appearance of the rear
interior of the Yukon where the compartment was found, and that testimony is
in the record. The agents stated that the rear of the Yukon was virtually
indistinguishable from one which has not been altered.
      Rivera argues that the fact that defense counsel cross-examined the
government’s witnesses regarding the Yukon indicates that the exhibits’
omission is substantial. This claim is premised on the mistaken understanding
that “the missing exhibits were used to prove an element of the
offense–knowledge–that went to the heart of the government’s case and Mr.
Rivera’s defense.” However, the government’s witnesses conceded that the
compartment was almost undetectable, and the government does not argue that
obvious alterations to the Yukon were one of the factors indicating guilty
knowledge. Thus, the appearance of the compartment, and by extension the
Yukon itself, did not play a significant or substantial role in the jury’s

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                                  No. 09-41082

determination that Rivera knew that he was transporting drugs. Furthermore,
the available record contains ample information regarding the compartment’s
placement and appearance in the Yukon. Thus, the exhibits’ omission is neither
substantial nor significant. See United States v. Gieger, 190 F.3d 661, 667 (5th
Cir. 1999) (finding that omission from the record of seventy-two bench
conferences during the course of trial was not a substantial and significant
omission because the conferences were administrative in nature, “permitted to
allow further argument on evidentiary objections,”and “[o]bjections to the court’s
rulings following these bench conferences [made] the arguments leading up to
the rulings unimportant to the record on appeal,” or concerned counts for which
the defendants were acquitted); Preciado-Cordobas, 981 F.2d at 1214 (finding
that, where missing parts of the record were adequately reconstructed, “[m]ere
speculation, entirely unsupported or contradicted by the record, that error may
have been committed during an unrecorded part of the trial simply is not enough
to support a finding that omissions are substantial and significant.”).
      Rivera also claims that this Court cannot review the sufficiency of the
evidence without considering all of the evidence presented at trial. If that were
the rule, then Selva and its progeny would not exist, because the absence of any
portion of the record would automatically require reversal. What Rivera really
wants is not for this Court to review the sufficiency of the evidence, but to re-
evaluate that evidence and find that the jury’s verdict was wrong. However, it
is not our place to reweigh the evidence, and “[w]e must not substitute for the
jury’s reasonable factual inferences other inferences that we may regard as more
reasonable.” McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009).
      Though cases do not usually involve the loss of so many exhibits, the
quantity of missing exhibits is irrelevant to the question of significance and
substantiality. Here, the record as a whole affords effective appellate review.



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We thus find that reversal is unnecessary on the ground of destruction of
evidence.
                           2. Sufficiency of the Evidence
        Rivera next argues that the district court erroneously denied his motion
for judgment of acquittal, because the evidence presented at trial was
insufficient to prove beyond a reasonable doubt that he had knowledge of the
drugs hidden in the Yukon. The government responds that the circumstantial
evidence of Rivera’s knowledge of the drugs was sufficient; we agree.
        This Court “review[s] de novo the district court’s denial of a motion for
judgment of acquittal.” United States v. Carbajal, 290 F.3d 277, 289 (5th Cir.
2002). The Court must “examin[e] the evidence and all reasonable inferences
drawn therefrom in the light most favorable to the verdict, and ask[] whether a
rational trier of fact could have found the element of knowledge of possession
beyond a reasonable doubt.” United States v. Gonzalez-Rodriguez, 621 F.3d 354,
360 (5th Cir. 2010). See also Jackson v. Va., 443 U.S. 307, 319 (1979) (“[T]he
relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”). “The evidence
need not exclude every reasonable hypothesis of innocence and the jury is free
to choose among reasonable interpretations of the evidence.” United States v.
Brugman, 364 F.3d 613, 615 (5th Cir. 2004).
        Rivera only challenges the knowledge element of his conviction.6 When
drugs are discovered in a vehicle while the defendant exercises control over it,
and the drugs are hidden in a secret compartment, “guilty knowledge may not
be     inferred   solely    from   the   defendant’s      control    of   the    vehicle.”


        6
        To possess a controlled substance with the intent to distribute, the defendant must
(1) knowingly (2) possess a controlled substance (3) with the intent to distribute that
substance. See United States v. Garcia-Flores, 246 F.3d 451, 454 (5th Cir. 2001).

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Gonzalez-Rodriguez, 621 F.3d at 361. There “is at least a fair assumption that
a third party might have concealed the controlled substances in the vehicle with
the intent to use the unwitting defendant as the carrier in a smuggling
enterprise.” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)
(quotation marks and citation omitted). Therefore, “[i]n secret compartment
cases, this Court requires additional circumstantial evidence that is suspicious
in nature and demonstrates guilty knowledge.” Gonzalez-Rodriguez, 621 F.3d
at 361 (finding sufficient evidence in a secret compartment case where 312
pounds of methamphetamine were concealed in the back of a load of grapefruits
in a freightliner; there was a suspicious time gap in travel between the loading
and delivery points of the freighter; there was evidence the log book had been
falsified; and there was a heavier lock than that typical for such a trailer, to
which the driver had the key). In the past, we have recognized the following
types of behavior as circumstantial evidence of guilty knowledge: “(1)
nervousness; (2) absence of nervousness, i.e., a cool and calm demeanor; (3)
failure to make eye contact; (4) refusal or reluctance to answer questions; (5) lack
of surprise when contraband is discovered; (6) inconsistent statements; (7)
implausible explanations; (8) possession of large amounts of cash; and (9)
obvious or remarkable alterations to the vehicle, especially when the defendant
had been in possession of the vehicle for a substantial period of time.” United
States v. Reyna, 148 F.3d 540, 544 (5th Cir. 1998) (citations omitted) (reversing
conviction for lack of sufficiency of circumstantial evidence of knowledge on a
finding that defendant’s composure, $700 in cash, and slightly oversized tire
“permitted conclusions of both guilt and innocence that are essentially in
balance,” resulting in reasonable doubt for a rational juror).
      The government relies on the following circumstantial evidence of Rivera’s
guilty knowledge: (1) Rivera’s inconsistent or implausible statements regarding
his acquaintance with Vincente Flores, his activities the day before the offense,

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and his purchase of the Yukon; (2) his demeanor at the checkpoint and during
police questioning; and (3) the high value of the methamphetamine in the
Yukon.
              a. Inconsistent statements to customs officials
      This court has held that “[p]erhaps the strongest evidence of a criminal
defendant’s guilty knowledge is inconsistent statements to federal officials,”
because “a factfinder could reasonably conclude that they mask an underlying
consciousness of guilt.” United States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th
Cir. 1990) (finding that nervousness, inconsistent stories, and implausible
explanation of how defendant acquired the truck constituted sufficient
circumstantial evidence of knowledge).
      As detailed supra, the agents testified that Rivera changed his story
regarding his knowledge of Vicente Flores. They also testified that Rivera gave
inconsistent statements regarding his activity in the period leading up to his
stop at the Sarita checkpoint on the early morning of September 5. Officer
Bussey testified that Rivera told him that on Saturday, September 4, at 10:00
a.m. he drove to Mexico in his Plymouth Breeze and returned around 10:30 p.m.
At trial, however, Rivera testified that he spent most of the day in McAllen,
Texas with Sonja, where they eventually bought her a car. He also testified that
he drove the Yukon to an auto repair store in Brownsville between 5:00 and 6:00
p.m. on September 4, but a lane check of the Yukon reflected that it entered the
United States from Mexico at 6:59 p.m.7 Officer Bussey testified that Rivera had
stated that Soto had accompanied him so that Soto could visit his sister in
Houston. Soto, on the other hand, testified that Rivera had asked him to come
along to help haul cars, and that he would visit his sister, “if there was an
opportunity.” Rivera also testified that he had invited Soto to help haul cars.

      7
        Officer Bussey admitted, however, that the license plate scanner at the lane check
does not identify either the type of vehicle or the driver.

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      Finally, Rivera’s statements regarding his purchase of the Yukon were
somewhat inconsistent. Agent Solis testified that Rivera said that he purchased
the Yukon in Dallas, but he did not remember the name or address of the car lot
or dealership. When Agent Solis told Rivera that the DEA would subpoena the
seller of the vehicle to identify the purchaser, Rivera changed his story, stating
that Vicente had purchased the vehicle in Dallas and had brought it to Rivera
in Brownsville. Officer Bussey testified that Rivera told him that he purchased
the Yukon after he saw Vicente driving it. Rivera testified that the Yukon had
been purchased in Dallas and brought to Brownsville, and he denied that he had
ever stated otherwise. Rivera argues that all three times he merely meant to
explain that the car was originally from Dallas. In addition, a certified copy of
the Yukon’s title history identified the Yukon’s owner as Rivera with a
Brownsville address, and the previous owner as Exchange Auto Sales in
Garland, Texas. Officer Bussey testified that Exchange Auto Sales had closed
down more than a year before Rivera purchased the vehicle, and a former
Exchange Auto Sales mechanic testified that he did not sell a 1998 white Yukon.
      Rivera’s testimony at trial contradicted that of the agents and officers.
The jury was under no obligation to believe Rivera and it was entitled to credit
the agents’ testimony, even without a recording of the post-arrest statements.
See United States v. Morin, 627 F.3d 985, 999 (5th Cir. 2010) (“Although no
recording was made of the initial DEA interview, and Morin contends that there
are no inconsistencies between what he told the agents originally and his
testimony at trial, the jury was entitled to credit the DEA agents’ testimony and
reject Morin’s testimony.”).
                           b. High value of drugs
      Also indicative of Rivera’s guilt is the fact that he was transporting fifty-
four pounds of methamphetamine worth approximately $1.7 million. A jury
could reasonably infer that Rivera “would not have been entrusted with such a

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large amount and high value of methamphetamine unless he knew he was part
of the drug trafficking scheme.” Gonzalez-Rodriguez, 621 F.3d at 362; see United
States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003) (finding jury could
reasonably infer knowledge from presence of drugs worth $300,000). Rivera
contends that this argument is undermined by the fact that the prints on the
wrapping of the methamphetamine were not his. However, the jury could have
reasonably believed that another party loaded the methamphetamine packets
into the Yukon, and Rivera then drove the truck.
                                c. Demeanor
      Rivera’s body language at the checkpoint and during police questioning
also offers circumstantial evidence of guilty knowledge. Agent Martinez testified
that Rivera appeared nervous because he maintained a “death grip” on the
steering wheel, his leg was continuously moving, and he would not make eye
contact with the agents. See United States v. Gutierrez-Farias, 294 F.3d 657,
660 (5th Cir. 2002) (finding rational jury could have inferred guilty knowledge
from the fact that “one of the agents at the checkpoint testified that Gutierrez
appeared nervous, even before he was directed to the secondary inspection
area”).   Other circumstantial evidence of guilty knowledge came from the
testimony of Agent Solis and Officers Bussey and Pacheco that Rivera did not
look at the agents when questioned, hesitated in his answers, and kept his arms
either crossed or in his pockets. See United States v. Richardson, 848 F.2d 509,
513 (5th Cir. 1988) (defendant’s “nervousness when going through the fixed
checkpoint . . . [was] suggestive of guilty knowledge”). In contrast, the agents
found Soto trustworthy because he was forthcoming in his responses to questions
and looked them in they eyes.
      Rivera testified that he was not nervous and denied that he had avoided
eye contact with the agents and officers. He also testified that when he was
being interrogated by the DEA, Agent Solis came into the room and began

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                                  No. 09-41082

cursing and yelling at him, which Agent Solis and Officer Bussey denied. Soto
testified that Mr. Rivera appeared calm and normal, although “serious” when he
was told about the drugs in the vehicle. Again, it was the jury’s prerogative to
credit the agents’ testimony, and to disbelieve Rivera and Soto.
      Viewed in the light most favorable to the verdict, Rivera’s inconsistent
statements and suspicious demeanor, combined with the high value of the
methamphetamine, are sufficient to indicate guilty knowledge. Therefore, the
government presented adequate circumstantial evidence for a reasonable jury
to find Rivera guilty of possession of the methamphetamine with intent to
distribute it.
                 3. Prosecutor’s Misstatement of Evidence
      Rivera argues that the district court abused its discretion by denying his
motion for a new trial based on a misstatement of facts outside of the record
made by the prosecutor during her closing argument. The government responds
that the factual error in the prosecutor’s closing argument did not affect
substantial rights.
      This Court reviews the district court’s denial of a motion for new trial for
abuse of discretion. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003). In reviewing
the denial of a motion for new trial, this Court does “not revisit evidence,
reevaluate witness credibility, or attempt to reconcile seemingly contradictory
evidence.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005).
      A district court may grant a defendant’s motion for new trial “if the
interest of justice so requires.” Fed. R. Crim. P. 33(a). “The remedy of a new
trial is rarely used; it is warranted ‘only where there would be a miscarriage of
justice’ or ‘where the evidence preponderates heavily against the verdict.’”
United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997) (quoting United States
v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996). A court will grant a new trial “only
upon demonstration of adverse effects on substantial rights of a defendant.”

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United States v. Wall, 389 F.3d 457, 467 (5th Cir. 2004). See also United States
v. Azubike, 504 F.3d 30 (1st Cir. 2007) (vacating conviction and sentence and
remanding where prosecutorial misstatements occurred twice and strongly
emphasized incorrect evidence, the misstatements were deliberate, and the
defense objected). “In determining whether the prosecutor’s remarks affected a
defendant’s substantial rights, the trial court should consider (1) the magnitude
of the prejudicial effect of the statements; (2) the efficacy of any cautionary
instructions; and (3) the strength of the evidence of defendant’s guilt.” Wall, 389
F.3d at 474.
          At issue here is the effect of an erroneous statement regarding the Yukon’s
registration made by the prosecutor in her closing argument. Defense counsel
at both the trial and appellate levels concede that there was no prosecutorial
misconduct and that the prosecutor’s misrepresentation was made in good faith.
During closing, the prosecutor attacked Rivera’s credibility, asserting that he
told different stories to different agents regarding his purchase of the Yukon and
his activities on the day before his arrest. She also stated: “This is a very
interesting set of paperwork . . . You heard the Defendant testify that he re-
registered [the Yukon] and got another license plate and you’re going to see
where that was done. And it wasn’t Brownsville, Texas.” This statement
referred to a receipt from Rivera’s re-registration to obtain new license plates for
the Yukon, which the government had entered into evidence. This receipt
contained the following language on the second line: “REG CLASS 25 $52.80
DALLAS CNTY,” and on the eighth line: “LAST ACTIVITY 08/23/2004 REPL
OFC: 031 AR.”8


          8
              The prosecutor had also cross-examined Rivera’s testimony about changing the license
plates:
          PROSECUTOR: Well, did you personally go and buy the new license plate?
          MR. RIVERA: Yes.
          PROSECUTOR: And where did you go?

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                                    No. 09-41082

      On its second day of deliberation, the jury sent the district court the
following note: “The Title and Vehicle Registration (exhibit 2 pg 2) states on
second line: DALLAS CNTY. Could he have picked up the plates in Brownsville
with it reading Dallas County?” The district court responded that this was a fact
question to be answered by the jury, not the court. After the guilty verdict,
Rivera’s counsel confirmed with the Texas Department of Transportation that
code “OFC: 031” on the receipt identified the office location of the Yukon’s re-
registration as Brownsville. Defense counsel therefore moved for new trial,
based on the prosecutor incorrectly stating that the evidence showed Rivera had
not re-registered the Yukon in Brownsville. The district court held three
hearings on the motion, and in a written order denied Rivera’s motion,
explaining that the other evidence of Rivera’s guilt, including other inconsistent
statements, “demonstrates to the Court that a miscarriage of justice has not
occurred.”
      We find that the district court did not abuse its discretion in ruling that
the prosecutor’s misstatement did not affect Rivera’s substantial rights.
Undoubtedly, Rivera’s credibility was a key issue in this case because one of the
main pieces of circumstantial evidence of his guilt was the agents’ testimony
that Rivera had changed his story. However, it was within the district court’s
discretion to determine that this one misstatement of fact regarding the location



      MR. RIVERA: To the court.
      PROSECUTOR: Where?
      MR. RIVERA: In Brownsville.
      ...
      PROSECUTOR: So, if there’s a receipt in the title history where this
      was bought out of Dallas County . . .
      MR. RIVERA: What, the truck?
      PROSECUTOR: For the truck, for the new license plate.
      MR. RIVERA: I do not know. I just went to the court.
      PROSECUTOR: Okay. That’s fine.


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                                      No. 09-41082

of Rivera’s re-registration, which could have undermined his credibility, did not
affect Rivera’s substantial rights.
       First, regarding the prejudicial effect of the misstatement, the prosecutor
did not emphasize the place of re-registration in her closing argument, or in her
cross examination. Instead, the focus of the closing argument was on Rivera’s
inconsistent statements and allegedly implausible accounts regarding how and
where he initially purchased the Yukon and what he did the day before the
offense. The prosecutor did cross-examine Rivera about the re-registration, but
it was not key evidence. Furthermore, other evidence of Rivera’s inconsistent
statements was extensive. The district court therefore could conclude that one
additional example of a conflicting statement by Rivera did not have a strong
prejudicial effect on the jury.
       The jury’s note asking whether the title registration document eliminated
the possibility that Rivera picked up the plates in Brownsville did not prove that
the misstatement had a strong prejudicial effect, either. While the face of the
exhibit states Dallas County, which reasonably could have led the jury to believe
that the re-registration occurred in Dallas, the jury note could also indicate that
they found the evidence unclear and did not consider it. The government
observes that the jury’s note explicitly refers to the government exhibit, rather
than the closing argument. Furthermore, as the government points out, this
note was just one of five sent by the jury.9
       Additionally, as detailed supra, there was other circumstantial evidence
of Rivera’s guilt, including his demeanor at the checkpoint and the amount of
drugs in the Yukon.


       9
        The government also contends that the court’s general instruction to the jury that
attorneys’ statements during closing argument do not constitute evidence undid the effect of
the erroneous statement. However, because the court gave its instruction before the closing
arguments, it could not serve to neutralize any prejudice caused by the misstatement. See
United States v. McPhee, 731 F.2d 1150, 1153 (5th Cir. 1984).

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                                       No. 09-41082

       Rivera contends that his was a close case, as exhibited by the fact that the
jury deliberated for two days, and that the district court stated at the sentencing
that “the jury may have convicted an innocent man.” However, a two-day
deliberation is not necessarily indicative of the weight of the evidence against
Rivera, as many factors contribute to the length of a jury’s deliberations. And,
if the district judge had truly thought that Rivera was innocent, then he would
not have rejected his motion for new trial. In this case, the judge’s actions speak
louder than his words.
       The prosecutor’s remark here was isolated and not emphasized, was made
in good faith, and Rivera did not object to it during the closing argument.
Moreover, the evidence of Rivera’s guilt was ample. We thus find that the
district court acted within its discretion in denying the motion for new trial
because there was no miscarriage of justice. See Wall, 389 F.3d at 474 (finding
that, “given the lack of bad faith on the part of the government, and given the
considerable evidence of Wall’s guilt, Wall failed to demonstrate that the
prosecutor’s remarks amounted to a miscarriage of justice”).10
                          4. Reasonableness of Sentence
       Finally, Rivera argues that his 235-month sentence should be vacated and
remanded for reconsideration because it was imposed before the Supreme
Court’s decisions in Gall and Kimbrough, and it is greater than necessary to
effectuate the purposes of sentencing under 18 U.S.C. § 3553(a), making it
unreasonable.        The government responds that a summary remand is
unnecessary because there is no indication that the district court was




       10
         United States v. Earle, 375 F.3d 1159 (D.C. Cir. 2004) and United States v. Watson,
171 F.3d 695 (D.C. Cir. 1999), cited by Rivera, are inapposite. The District of Columbia Circuit
reversed in those cases because the defendants were prejudiced by prosecutorial remarks that
knowingly misstated the evidence during closing argument. Here, there was little prejudice
to Rivera, and Rivera conceded that the prosecutor did not knowingly misstate the evidence.

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                                       No. 09-41082

constrained by overruled precedent, and the district court properly considered
the § 3553(a) factors.
       Following United States v. Booker, 543 U.S. 220 (2005), sentences are
reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.
§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). This
includes a review of both the substantive and procedural reasonableness of the
sentence. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).
Appellate arguments that were not raised in the district court are reviewed
under the plain error standard of review. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007).11 Under that standard, this court may correct the
sentence imposed only if “(1) there is error . . . ; (2) it is plain; and (3) it affects
substantial rights.” Id. at 392. In addition, the error must seriously affect “the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). An error that affects substantial rights
is one for which there is “‘a reasonable probability that, but for [the error
claimed], the result of the proceeding would have been different.’” United States
v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (quoting United States v. Bagley,
473 U.S. 667, 682 (1985)).
       Here, in its PSR, the Probation Office calculated Rivera’s base offense level
as 38 because the offense involved a net weight of 11.02 kilograms of
methamphetamine (actual). See U.S.S.G. § 2D1.1(c)(1). Since Rivera had no
prior criminal history, he fell into the lowest criminal history category of I. The
advisory guideline range was 235 to 293 months, the statutory minimum was 10
years, and the statutory maximum was life. See 21 U.S.C. § 841(b)(1)(A). Rivera
filed no objections to the Probation Office’s calculation of the guideline range,


       11
          Rivera has “preserve[d] for possible further review his position that his substantive
unreasonableness claim should not be subject to plain-error review,” based on other circuits’
distinct positions on this issue.

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                                  No. 09-41082

but at the sentencing hearing, his counsel argued that the PSR-recommended
sentence was greater than necessary to meet the goals of sentencing, given
Rivera’s stable employment, family history, and the facts of the offense. The
district court disagreed, finding “the seriousness of the offense to be the
predominant factor in sentencing,” and sentenced Rivera to 235 months’
imprisonment and a five-year term of supervised release.
        We find unpersuasive Rivera’s argument that the sentence was
unreasonable in light of the Supreme Court’s opinions in Gall v. United States,
552 U.S. 38 (2007) (holding district courts are free to vary from the Guidelines
based on factors for which the Guidelines already account), and Kimbrough v.
United States, 552 U.S. 85 (2007) (holding sentencing courts have the discretion
to impose a non-Guideline sentence based on the courts’ disagreement with
Congressional and Sentencing Commission policy). As Rivera did not preserve
this issue for appeal, we review it for plain error.          See United States v.
Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir. 2008). Rivera asserts that
this Court’s jurisprudence prior to Gall and Kimbrough restricted the district
court’s sentencing in a manner incompatible with those cases. As such, he
argues that this Court should vacate the sentence and remand to the district
court for reconsideration in light of Gall and Kimbrough.
        This Court has rejected the same argument on numerous occasions. See,
e.g.,   Rodriguez-Rodriguez,     530   F.3d    at   388-89;    United   States      v.
Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008). Although this Court’s
post-Booker precedent was arguably inconsistent with Gall and Kimbrough,
there is no requirement that we summarily remand a sentence merely because
it was imposed prior to those decisions. “[N]othing in the record indicates that
the district court in making its sentencing decision here felt in any way limited
in the alternatives it desired to consider by this court’s sentencing jurisprudence,
or in any way disagreed with the guidelines or felt that a sentence within the

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                                       No. 09-41082

guideline range was too harsh, or had any inclination, for any reason, to impose
a lesser sentence than it did.”12 Rodriguez-Rodriguez, 530 F.3d at 388. The
district court heard the arguments and concluded that a sentence within the
guidelines range satisfied the factors of § 3553(a). Rivera has not shown any
reversible plain error.
       Rivera also contends that his sentence is unreasonable because 235
months is “greater than necessary” to effectuate the purposes of 18 U.S.C.
§ 3553(a). We first note that the district court is not required to exercise its
freedom to disagree with the guidelines, and thus Rivera’s argument fails that
“the sentence is unreasonable because . . . the district court did not consider that
it could vary from the Guidelines based upon policy disagreements with them.”
See Rodriguez-Rodriguez, 530 F.3d at 388.
       Rivera also argues that the sentencing judge committed clear error
because he based the sentence entirely on the type and quantity of drugs at
issue, and failed to consider the other § 3553(a) factors, such as the fact that
Rivera had no criminal record, and had a consistent employment record and
stable family history. However, the sentencing record shows that the district
court considered all of the § 3553(a) factors and balanced them adequately. The
facts that Rivera contends the district court ignored were in fact detailed in the
PSR, which the court adopted. The sentencing judge also stated that he had
considered the various § 3553(a) factors, and there is no requirement that the
sentencing court give all of those factors equal weight. See United States v.
Hernandez, 633 F.3d 370, 375-376 (5th Cir. 2011) (“[A]lthough courts must
consider all the § 3553(a) factors, it is not possible, let alone required, that they
give incommensurable factors . . . equal weight. Rather, they must use their

       12
         The court’s comment that there was nothing it could do about the conviction of Rivera
obviously pertained to Rivera’s conviction, and not the sentence. The district court’s
commentary on the defendant’s credibility does not equal a statement that it would have gone
outside of the guidelines if it could.

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                                No. 09-41082

judgment to weigh the relative importance of each factor in relation to each
particular defendant, with some factors being more important in some cases and
other factors more important in others.”). We therefore find that the district
court committed no clear error, and that the 235-month sentence Rivera received
was reasonable.
                                CONCLUSION
      For the aforementioned reasons, the judgment of conviction and sentence
as to Rivera is in all things AFFIRMED.




                                      23
