                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                       July 18, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-50938


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                               versus

                       JOSE LUIS MALDONADO,

                                                 Defendant-Appellant.



          Appeal from the United States District Court
                for the Western District of Texas
                         (2:03-CR-668-1)


Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     On 16 August 2004, Jose Luis Maldonado was sentenced, inter

alia, to 262-months imprisonment, after a jury convicted him of

possessing marijuana, with the intent to distribute, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(B).       Proceeding pro se, he

challenges, inter alia:   the sufficiency of the evidence; and his

career-offender   sentencing   enhancement.    CONVICTION    AFFIRMED;

SENTENCE VACATED; REMANDED FOR RESENTENCING.




     *
       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this opinion should not be published and is not precedent except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.
                                  I.

     On 29 August 2003, Border Patrol Agents in Texas were informed

that a tractor-trailer carrying narcotics might cross the Cline

checkpoint on Highway 90 around 3:00 a.m.        Around 3:15 a.m.,

Maldonado’s tractor-trailer entered Cline’s primary inspection

area, where Agents questioned him about his truck’s contents and

destination.    Upon inspecting the bill of lading, which Maldonado

had signed, Agents determined he was considerably off his travel

route.    When questioned, Maldonado nervously told Agents he took a

12-hour detour to deliver his wife and child to Del Rio.     Agents

requested, and Maldonado consented, to a search of the trailer.

     A narcotics-trained canine immediately alerted on the rear of

the trailer and went into a “pinpoint stare” at the front.       When

Agents approached the trailer’s rear doors, they smelled air

freshener, which, they later testified, is often used to mask

narcotics’ odors.    At the rear doors, the dog alerted again.

         Commercial trailers are sealed using an aluminum strip

roughly half an inch wide by five inches long to prevent tampering

with the load inside; the seal is then stamped with a number

reflected on the bill of lading.       At trial, an Agent testified

trailer seals can be removed and replaced without breaking them.

After recording and matching Maldonado’s trailer’s seal number to

that on the bill of lading, Agents broke the seal and opened the

doors, revealing pallets of antifreeze with 12 duffel bags on top.

Entering the trailer, Agents smelled a stronger air-freshener scent

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and found the trailer’s interior walls wet with the fragrance.

When asked what the bags contained, Maldonado responded:               “That is

not mine”.      He then became aggravated and cursed while being

handcuffed and read his Miranda rights.

      Further   inspection     revealed:            the   duffel     bags    held

approximately 953 pounds of marijuana wrapped in cellophane blocks;

broken seals were in the trailer; and Madonado’s cab contained,

inter alia, a pair of night-vision goggles and a logbook bearing no

entries for the previous two days.           At trial, an Agent testified

the marijuana would have sold for approximately $450 per pound in

the San Antonio area.

                                     II.

      The delay in this appeal demands explanation.                   As noted,

Maldonado is proceeding pro se.       He had counsel at trial (February

2004) and sentencing (August 2004).          On appeal, he changed counsel

in   December   2004,   and   in   October    and    December      2005,    before

proceeding pro se in May 2006.             Before Maldonado’s motion to

relieve his last attorney was granted, that attorney had already

filed Maldonado’s opening brief.           That brief was withdrawn, and

Maldonado filed his substitute pro se brief in August 2006.                     He

filed his pro se reply brief in December 2006 (and his corrected

reply brief in January 2007).

      Regarding his conviction, Maldonado contends:                the evidence

was insufficient to convict him of knowingly possessing marijuana


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with the intent to distribute it; the district court erroneously

refused to suppress evidence of the marijuana; and the jury was

inadequately    instructed   because     the   court    reporter     failed   to

transcribe the jury charge.      These contentions fail.

      For his sentence, he asserts his career-offender enhancement

was improper under Guidelines § 4B1.2.           The Government concedes

error.

                                    A.

      Concerning the insufficiency-of-the-evidence claim, the denial

of Maldonado’s motions for judgment of acquittal is reviewed de

novo.    E.g., United States v. Burns, 162 F.3d 840, 847 (5th Cir.

1998).    Viewing the evidence in the light most favorable to the

verdict, we accept the jury’s credibility choices and reasonable

inferences.     E.g., United States v. Anderson, 174 F.3d 515, 522

(5th Cir. 1999).       Restated, a conviction must be upheld if a

rational jury could have found the Government proved the offense’s

essential elements beyond a reasonable doubt.            Id.

      Maldonado maintains the evidence fails to establish he knew

the marijuana was in his trailer.        Needless to say, knowledge is an

essential element of drug offenses for possession with the intent

to distribute.    See 21 U.S.C. § 841(a); United States v. Moreno,

185 F.3d 465, 471 (5th Cir. 1999).        Ordinarily, such knowledge may

be   inferred   from   a   defendant’s    control      over    the   narcotics’

location.     Moreno, 185 F.3d at 471.         When drugs are concealed,


                                    4
however, additional circumstantial evidence is required.   Id.; see

also, United States v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir.

1990) (it is a “fair assumption that a third party might have

concealed the controlled substance[] in the vehicle with the intent

to use the unwitting defendant as the carrier in a smuggling

enterprise”).

      Maldonado’s trailer contained 953 pounds of marijuana, valued

at more than $400,000.   The jury could have reasonably inferred he

would not have been entrusted to transport such a large value or

quantity of narcotics without his knowledge.    E.g., United States

v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003) (large quantity or

high value of narcotics is probative of knowledge); United States

v. Ramos-Garcia, 184 F.3d 463, 465-66 (5th Cir. 1999) (70 pounds of

hidden marijuana evincing knowledge).

      The jury also could have reasonably inferred Maldonado’s

knowledge of the marijuana through his nervousness, conflicting

statements, or implausible story.    Diaz-Carreon, 915 F.2d at 954-

55.   The evidence showed, inter alia:   the trailer was loaded and

sealed at a warehouse near Houston, Texas; the trailer was weighed

before and after loading; a digital photograph of the load was

taken before the trailer was sealed; despite his employer’s policy

forbidding detours, Maldonado rerouted 12 hours out of the way to

Del Rio (approximately 320 miles each way), instead of delivering

the load directly to San Antonio per the bill of lading; in further

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contravention of his employer’s requirements, and of the law,

Maldonado failed to maintain his truck’s log book for at least two

days; and night-vision goggles were not necessary for a driver’s

duties in the trucking business.              The weighing and the digital

photograph demonstrate the trailer could not have contained the

weight   (over   900    pounds)   of    the   marijuana     when   it   left    the

warehouse.   The remaining circumstantial evidence casts serious

doubt on the claim that Maldonado took his child and wife to Del

Rio in his fully-loaded, 80,000 pound truck in the dead of night.

Id.   His nervousness further supports the jury’s inference of

knowledge.   Id.       In short, ample evidence supports a reasonable

jury’s finding, beyond a reasonable doubt, Maldonado knew he was

transporting marijuana.

                                        B.

      Regarding the denial of his motion to suppress the marijuana,

Maldonado contends, for the first time on appeal, the Agents

extended   his   primary    checkpoint        questioning    beyond     the    time

permitted by the Fourth Amendment.            He also maintains his consent

was not voluntarily given.             In his reply brief he asserts the

Agents exceeded the scope of their delegated powers. When error is

properly preserved, a suppression ruling is reviewed de novo;

factual findings, for clear error.            E.g., United States v. Castro,

166 F.3d 728, 731 (5th Cir. 1999).             But “[g]enerally, if a party

fails to timely raise an issue in district court, we will review it


                                         6
for plain error unless the party made its position clear to the

district court and to have objected would have been futile”.

United States v. Castillo, 430 F.3d 230, 242 (5th Cir. 2005).

Plain, although not per se reversible, error exists if a clear or

obvious error affected a party’s substantial rights.          E.g., United

States v. Olano, 507 U.S. 725 (1993).

     In district court, Maldonado merely claimed his consent was

limited to the Agents looking at the back of his trailer, not to

their looking inside the trailer.        The district court ruled it need

not reach the issue because “there was adequate evidence to give

rise to probable cause to search the trailer”.          We agree.

     Because Maldonado did not preserve in district court his claim

concerning the duration of the primary-checkpoint questioning, it

is reviewed only for plain error.           Castillo, 430 F.3d at 242.

Maldonado   fails   to   show   a   clear    or   obvious   error   because

uncontradicted testimony at the suppression hearing was that the

initial questioning in the primary checkpoint, including when he

consented to the search, “took no more than one minute”.              “[A]

couple of minutes” is a permissible duration for a checkpoint stop.

United States v. Machuca-Barrera, 261 F.3d 425, 435 (5th Cir.

2001). Moreover, the Border Patrol may extend a checkpoint stop to

search for drugs based on “consent or probable cause”.         Id. at 434.

Thus, no clear error exists.



                                     7
     Regarding Maldonado’s remaining contention, not raised until

his reply brief, it goes without saying that this court does not

consider issues raised for the first time in a reply brief.   E.g.,

United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).

                                C.

     Maldonado next asserts the jury was inadequately instructed

because the court reporter neglected to transcribe the jury charge.

The Court Reporter Act requires a verbatim transcript of all

proceedings in open court in a criminal case.   28 U.S.C. § 753(b);

United States v. Taylor, 607 F.2d 153, 154 (5th Cir. 1979).    For

reversal, however, depending on whether defendant has the same

counsel on appeal as at trial, a defendant must show an omission

either “prejudice[d] his appeal” (same counsel) or concerns “a

substantial and significant portion of the record” (new counsel).

United States v. Selva, 559 F.2d 1303, 1305-1306 (5th Cir. 1977).

Here, of course, Maldonado is proceeding pro se.   See Taylor, 607

F.2d at 154 (not having to decide standard for pro se appellant).

     The district court provided a copy of the jury charge to each

juror and asked them to read it along with the court.    The court

also provided Maldonado a copy of the charge, and the record

contains the charge, signed by the Judge.    Maldonado, of course,

was present at trial.   Moreover, proceeding pro se, he does not

allege any error in these copies of the charge.       Accordingly,




                                8
regardless of the legal standard to be applied, Maldonado fails to

show reversible error.

                                      D.

     Finally, Maldonado contends the district court violated United

States v. Booker, 543 U.S. 220 (2005), in finding he was a career

offender under Guidelines § 4B1.2.           Inter alia, Maldonado claims

the district court erred in characterizing as violent a prior

Washington state-court third-degree assault conviction, which that

court had deemed non-violent.

     Because Maldonado’s trial counsel timely raised an objection

at sentencing pursuant to Blakely v. Washington, 542 U.S. 296, 302

(2004) (facts used in state court to increase a sentence beyond the

statutory maximum must be proved to a jury beyond a reasonable

doubt), his challenge is reviewed for harmless error.           See United

States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005) (“if ... the

Sixth Amendment issue presented in Booker ... is preserved in the

district court by an objection, we will ordinarily vacate the

sentence and remand, unless ... the error is harmless under Rule

52(a)   of   the   Federal   Rules   of     Criminal   Procedure.”).   The

Government concedes it cannot demonstrate the error was harmless.




                                     III.


                                      9
     For the foregoing reasons, Maldonado’s conviction is AFFIRMED;

his sentence is VACATED; and this matter is REMANDED to district

court for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING




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