                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
               _____________________________________

                            No. 00-50420
               _____________________________________


                     UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                 v.

                     Alejandro Escobar GARCIA,

                                            Defendant-Appellant.


         __________________________________________________

            Appeal from the United States District Court
                  For the Western District of Texas
                            (W-99-CR-075)
         __________________________________________________

                          August 12, 2002

Before DAVIS, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Alejandro Escobar Garcia appeals his conviction for

conspiracy to distribute methamphetamine in violation of 21

U.S.C. § 841(a)(1) and § 846 and his resulting sentence.

Specifically, Garcia argues that (1) the evidence was

insufficient to establish that he knowingly participated in the

drug conspiracy; (2) the district court erred in submitting a

deliberate ignorance instruction to the jury; and (3) the

     *
          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that this opinion should not be published and is not precedent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.
district court erred in sentencing Garcia to a term of five years

of supervised release.1   Finding error only in the sentencing, we

affirm Garcia’s conviction, vacate his sentence, and remand for

resentencing.

                                 I.

     In July 1999, Mary Pena, a police informant, set up a drug

transaction at the request of the police with seller Pedro

Herrera.   Herrera contacted his supplier, Luis Mendoza, who

agreed to supply the methamphetamine for the sale.   The three

agreed that the sale would take place at a motel in Hillsboro,

Texas.

     On the day of the sale, Herrera, co-conspirator Celestino

Mendoza (no relation to Luis Mendoza), and Herrera’s wife and

child stopped by Luis Mendoza’s apartment on their way to

Hillsboro.   Herrera and Luis Mendoza decided to drive separately

to Hillsboro because Herrera was waiting for a friend, Garcia, to

arrive.    Before Herrera and Celestino Mendoza left for Hillsboro,

Garcia arrived and entered Luis Mendoza’s apartment.

     Luis Mendoza, Herrera, and Celestino Mendoza (and others

with whom they were traveling) met at an outlet mall near the

motel where Pena was waiting.   Garcia did not meet the others at

     1
          In his opening brief, Garcia also asserts that the
appellate record, a portion of which was lost, should be
supplemented to include a verified copy of the jury instructions.
After Garcia filed his brief, this court granted his motion to
supplement. Garcia makes no further objections to the record in
his reply brief. Therefore, this issue is now moot.

                                 -2-
the mall.    Herrera and Celestino Mendoza went to the motel, met

Pena, and made the sale.

     During the time before the sale, two police officers,

Officers West and Markham, were conducting surveillance of the

motel’s parking lot.    The officers observed Garcia sitting in a

white pick-up truck and watching Pena’s room.    Garcia then

appeared to notice the officers, and both parties moved their

vehicles.    According to Officer West, Garcia exited the parking

lot, drove down the service road, re-entered the parking lot, and

drove slowly in circles around the lot, stopping occasionally to

put his car in reverse and then to drive forward.      The officers

believed that Garcia was conducting counter-surveillance for the

drug sellers.

     After the sale was made, police moved in and quickly

arrested Celestino Mendoza and Herrera.    Upon seeing this, Garcia

fled from the scene.    Police chased Garcia and finally

apprehended him.    The police found no firearms or communication

equipment, such as cell phone or two-way radio, in Garcia’s

truck.   Luis Mendoza was never apprehended, and Herrera and

Celestino Mendoza testified that they did not know that Garcia

was in the parking lot.

     At trial, Garcia’s defense was that he was in the “wrong

place at the wrong time.”2   Garcia did not testify.    The jury


     2
            R. at 17.

                                 -3-
convicted Garcia of conspiracy to distribute methamphetamine in

violation of 21 U.S.C. § 841(a)(1) and § 846.      The judge

sentenced Garcia to 72 months’ imprisonment, five years of

supervised release, and a $100 special assessment.      Garcia now

appeals.

                                 II.

     Garcia’s primary argument on appeal is that the government

presented insufficient evidence that he knowingly participated in

the drug conspiracy to support his conviction.      In reviewing the

sufficiency of the evidence, this court must determine whether a

rational trier of fact could find that the evidence establishes

guilt beyond a reasonable doubt.3      Under this standard, this

court views all the evidence in the light most favorable to the

verdict.4

     To establish guilt of a drug conspiracy under 21 U.S.C. §

841, the government must prove beyond a reasonable doubt (1) the

existence of an agreement between two or more persons to violate

narcotics law; (2) the defendant’s knowledge of the agreement;

and (3) the defendant’s voluntary participation in the

agreement.5   The government must show beyond a reasonable doubt

that the defendant had the deliberate, knowing, and specific

     3
            See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
     4
            See id.
     5
          See United States v. Gonzalez, 76 F.3d 1339, 1346 (5th
Cir. 1996).

                                 -4-
intent to join the conspiracy.6    Because secrecy is the norm in a

conspiracy, each element of the conspiracy may be established

from circumstantial evidence.7

     Garcia argues that the evidence is insufficient to show that

he knowingly participated in the conspiracy.    Specifically,

Garcia points to the facts that neither Herrera nor Celestino

Mendoza knew that he was in the parking lot, there were no guns

nor communication equipment in his car, and that there was no

evidence whatsoever that he knew about the drug sale.

     We disagree.   Herrera and Celestino Mendoza stated that they

saw Garcia at Luis Mendoza’s apartment the day of the drug sale.

Later that day, Garcia was present at the exact time and location

of the drug sale.   Officers Markham and West testified that

Garcia’s behavior in the parking lot was consistent with that of

someone conducting counter-surveillance.    Furthermore, Garcia

fled the scene immediately after police began making arrests and

tried to evade the officers who pursued him.    This evidence is

sufficient to support the jury’s finding that Garcia knowingly

participated in the drug conspiracy.

                                 III.

     Garcia next contends that the district court committed

     6
          See United States v. Galvan, 693 F.2d 417, 419 (5th Cir.
1982).
     7
          See United States v. Bobo, 586 F.2d 355, 368 (5th Cir.
1978); United States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th
Cir. 1988).

                                  -5-
reversible error by submitting a deliberate ignorance instruction

to the jury.        “A district court has broad discretion in framing

the instructions to the jury and this Court will not reverse

unless the instructions taken as a whole do not correctly reflect

the issues and the law.”8

     “The purpose of the deliberate ignorance instruction is to

inform the jury that it may consider evidence of the defendant’s

charade of ignorance as circumstantial proof of guilty

knowledge.”9       “It should only be given when a defendant claims a

lack of guilty knowledge and the proof at trial supports an

inference of deliberate indifference.”10      The instruction is

proper where the evidence shows (1) subjective awareness of a

high probability of the existence of illegal conduct, and (2)

purposeful contrivance to avoid learning of the illegal

conduct.11    Moreover, “[w]e have consistently held that an error

in giving the deliberate ignorance instruction is . . . harmless

where there is substantial evidence of actual knowledge.”12

     8
          United States v. Wells, 262 F.3d 455, 465 (5th Cir. 2001)
(citing United States v. McKinney, 53 F.3d 664, 676 (5th Cir. 1995)
(internal quotation marks omitted).
     9
             Id. (internal quotation marks and citation omitted).
     10
             Id.    (internal quotation marks and citation omitted).
     11
          See id. (citing United States v. Threadgill, 172 F.3d
357, 368 (5th Cir. 1999) (internal quotation marks omitted).
     12
          United States v. Threadgill, 172 F.3d 357, 369 (5th Cir.
1999) (citing United States v. Cartwright, 6 F.3d 294, 301 (5th
Cir. 1993) (internal quotation marks omitted); see also Wells, 262

                                    -6-
     For the reasons discussed in the preceding section of this

opinion, there is substantial evidence that Garcia had actual

knowledge of the drug conspiracy.      Accordingly, we conclude that

any error the district court may have committed in giving a

deliberate ignorance instruction was harmless under the

circumstances.

                                 IV.

     Finally, Garcia argues that the district court erred in

sentencing him to a term of five years of supervised release.

Garcia argues that this sentence violates the principles set

forth in Apprendi v. New Jersey because the indictment made no

reference to drug quantity.13

     The parties disagree as to whether Garcia properly objected

at trial to this deficiency in the indictment.     We need not

resolve this issue because, as the government concedes, the

district court committed plain error by sentencing Garcia to more

than three years of supervised release.14     For these reasons, we

vacate Garcia’s sentence and remand for resentencing.



Conviction AFFIRMED; sentence VACATED; case REMANDED for

resentencing consistent with this opinion.


F.3d at 466.
     13
          530 U.S. 466 (2000).
     14
          See 18 U.S.C. § 3583(b)(2); 21 U.S.C. § 841(b)(1)(C); see
also United States v. Kelly, 974 F.2d 22, 24-25 (5th Cir. 1992).

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