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

                                                                  FILED
                                                                November 6, 2007
                                No. 06-51532
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

HERMINIO CAPULIN-DE LA CRUZ

                                           Defendant-Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas
                            USDC No. 2:06-CR-382-1


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Herminio Capulin-De La Cruz (Capulin) appeals his jury conviction for
possession with intent to distribute more than 100 kilograms of marijuana and
importation of more than 100 kilograms of marijuana in violation of
21 U.S.C. §§841(a)(1) and (b)(1)(B) and 21 U.S.C. § 846. Capulin argues that the
evidence is insufficient to establish beyond a reasonable doubt that he committed
either offense.



      *
      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should not be published and is not precedent except under the limited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. 06-51532

      The Government presented no evidence that Capulin had actual
possession of the marijuana. Therefore, in order to find Capulin guilty of
possession with intent to distribute marijuana and importation of marijuana,
there must be some evidence to support “at least a plausible inference” that
Capulin had some knowledge of and access to the marijuana. See United States
v. Hinojosa, 349 F.3d 200, 203-04 (5th Cir. 2003).
      A review of the record indicates that a reasonable trier of fact could have
plausibly inferred that Capulin knew that the individuals with whom he crossed
into the United States were transporting marijuana; that Capulin had access to
the marijuana; and that Capulin knowingly participated in bringing the
marijuana into the United States. The jury heard testimony from one of the
smugglers that Capulin was the group’s guide. The jury also heard Border
Patrol agents testify that Capulin admitted he was traveling with the group,
admitted he knew that the group was carrying marijuana, and admitted he was
carrying food for the group. Based on Capulin’s own testimony, it was clear that
the group he was traveling with was the same group that Border Patrol agents
observed crossing the Rio Grande river from Mexico into the United States with
numerous duffel bags. Capulin described how he and the group brought the
duffel bags across the river by boat. The duffel bags Capulin’s group transported
across the Rio Grande were the same bags seized by Border Patrol agents and
which contained more than 290 kilograms of marijuana.
      Based on the record, a reasonable trier of fact could have found that the
evidence established beyond a reasonable doubt that Capulin constructively
possessed more than 100 kilograms of marijuana with the intent to distribute
it and knowingly participated in its importation. See Jackson v. Virginia,
443 U.S. 307, 319; United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
Accordingly, Capulin’s conviction is AFFIRMED.




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