     Case: 09-41158 Document: 00511276753 Page: 1 Date Filed: 10/27/2010




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

                                                 FILED
                                                                          October 27, 2010
                                     No. 09-41158
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

v.

SERGIO GARZA-CASTANEDA,

                                                   Defendant-Appellant.


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 5:09-CR-1289-2


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Sergio Garza-Castaneda (Garza) appeals his jury convictions for
conspiracy to possess with intent to distribute over 1,000 kilograms of marijuana
and possession with intent to distribute over 1,000 kilograms of marijuana. The
district court sentenced Garza to concurrent terms of 168 months of
imprisonment and five years of supervised release.
       Garza argues that the district court abused its discretion in admitting
evidence of his prior conviction for misprision of a drug felony. Garza previously

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41158 Document: 00511276753 Page: 2 Date Filed: 10/27/2010


                                   No. 09-41158

failed to report that a large quantity of cocaine was stored in a trailer on his
property. The evidence was relevant to an issue other than Garza’s character
because it tended to show that he knew or was deliberately ignorant of whether
marijuana was concealed in the trailer in the instant case. See United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). The probative value of the
evidence was relatively high because there was no direct evidence that Garza
knew there was marijuana inside the trailer. See id. at 914. The prejudicial
impact of the evidence was mitigated by the district court’s limiting instructions
to the jury. Accordingly, the district court did not abuse its discretion in finding
that the probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. See id.
      In addition, Garza argues there was insufficient evidence that he knew the
trailer contained marijuana to support his convictions. The evidence construed
in the light most favorable to the verdict showed that a strong odor of marijuana
emanated from the trailer. It was within the province of the jury to disbelieve
Garza’s testimony that he did not know there was marijuana inside the trailer
and infer that he detected the odor of marijuana. See United States v. Casilla,
20 F.3d 600, 602, 606 (5th Cir. 1994). Agents testified that Garza said he was
being paid a large sum of money to transport the trailer a relatively short
distance and there was a fifty-fifty chance drugs were in the trailer, and the jury
was entitled to credit the agents’ testimony over Garza’s.         See id.   Garza
transported the trailer at an unusual time, the purported recipient was not
expecting the delivery, and the purported destination was located near Garza’s
property. The value of the drugs being transported, $577,192, is also probative
of Garza’s knowledge because the jury could reasonably have inferred that Garza
would not have been entrusted with extremely valuable cargo if he was not part
of the conspiracy. See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir.



                                         2
    Case: 09-41158 Document: 00511276753 Page: 3 Date Filed: 10/27/2010

                                  No. 09-41158

2003). Therefore, there was sufficient evidence that Garza knew the trailer
contained marijuana to support his convictions. See id. at 324-25.
      Garza also argues that the prosecutor engaged in various acts of
misconduct. Garza contends that the prosecutor introduced evidence of his prior
conviction in a misleading manner.        Evidence of the prior conviction was
admissible, and the prosecutor accurately described the conviction. Because
Garza has failed to show that the prosecutor’s remarks were improper, he has
failed to show error in this regard. See United States v. McCann, 613 F.3d 486,
494-95 (5th Cir. 2010).
      Next, Garza contends that the prosecutor improperly referred to his co-
defendant’s guilty plea.    The Government introduced the plea for a proper
purpose, and the district court issued cautionary instructions regarding
accomplice testimony.       Garza, who is represented by counsel, waived
consideration of the prosecutor’s remarks that he contends imputed the co-
defendant’s guilty knowledge to him by virtue of inadequate briefing. See United
States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). Having failed to show
that the plea was improperly introduced or that the prosecutor’s remarks
regarding the plea were improper, Garza has also failed to show error in this
regard. See United States v. Setser, 568 F.3d 482, 494 (5th Cir.), cert. denied, 130
S. Ct. 437 (2009); see also McCann, 613 F.3d at 495.
      Last, Garza contends that the prosecutor improperly relied on a drug
courier profile as substantive evidence of his guilty knowledge. Even if the
prosecutor’s remarks were improper, any possible prejudicial effect was minimal.
The remarks identified by Garza consisted of 11 lines in a 17-page closing
argument. The district court instructed the jury that arguments by counsel are
not evidence and that the case was to be decided solely on the evidence, helping
to mitigate any possible prejudice. Furthermore, as set forth above, the evidence
was sufficient to sustain the convictions. Because Garza has failed to show that



                                         3
    Case: 09-41158 Document: 00511276753 Page: 4 Date Filed: 10/27/2010

                                No. 09-41158

his substantial rights were affected by the prosecutor’s remarks, he has failed
to show error in this regard as well. See McCann, 613 F.3d at 496.
      The judgment of the district court is AFFIRMED.




                                      4
