     Case: 15-40654      Document: 00513792456         Page: 1    Date Filed: 12/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-40654                                  FILED
                                  Summary Calendar                        December 12, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HECTOR ALBERTO BURTON; GUILLERMO HERRERA,

                                                 Defendants-Appellants


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:13-CR-504-2


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       A jury convicted Hector Alberto Burton and Guillermo Herrera of one
count of conspiracy to possess with intent to distribute approximately 264.8
kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and
846, and one count of possession with intent to distribute approximately 264.8
kilograms of marijuana, in violation of § 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40654     Document: 00513792456      Page: 2   Date Filed: 12/12/2016


                                  No. 15-40654

The district court sentenced both defendants to 87 months of imprisonment
and a five-year term of supervised release.
        During a traffic stop, officers searched the tractor-trailer driven by
Herrera and discovered a false compartment with 264.8 kilograms of
marijuana. The marijuana was valued at approximately $384,000. A piece of
paper found in the truck, which contained contact information for Burton, and
cellular phone records connected Herrera to Burton and Ricardo “Rick” Garcia.
The Government argued at trial that the three men conspired together to
transport the marijuana to Ohio.
        Burton challenges the sufficiency of the evidence underlying both
verdicts. He argues that there is no evidence that he actually or constructively
possessed the marijuana seized in the truck because nothing in the record
established that he had knowledge of Herrera’s activities in transporting the
load.    Burton emphasizes that evidence of phone calls among the phones
associated with Garcia, Herrera, and himself alone is insufficient to support
the convictions in the instant case because the content of those calls remain
unclear.
        When analyzing the sufficiency of the evidence, we view “all evidence,
whether circumstantial or direct, in the light most favorable to the
Government with all reasonable inferences to be made in support of the jury’s
verdict.” United States v. Terrell, 700 F.3d 755, 760 (5th Cir. 2012) (internal
brackets, quotation marks, and citation omitted). The Government may prove
its case through direct or circumstantial evidence, and “the jury is free to
choose among reasonable constructions of the evidence.” United States v.
Mitchell, 484 F.3d 762, 768 (5th Cir. 2007) (internal quotation marks and
citation omitted). We will uphold the jury’s verdict if “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable



                                        2
    Case: 15-40654    Document: 00513792456     Page: 3   Date Filed: 12/12/2016


                                 No. 15-40654

doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en
banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
      Burton offered inconsistent statements that suggested guilty knowledge
of the marijuana and the conspiracy, including dubious statements that a
“Junior Perez” hired Herrera to drive the truck. See United States v. Ramos-
Rodriguez, 809 F.3d 817, 822 (5th Cir.), cert. denied, 136 S. Ct. 2040 (2016). In
addition, the high value of the seized marijuana supported an inference of
guilty knowledge. See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir.
2003). Evidence that the trailer attached to the tractor was not the trailer
registered for that vehicle and the fact that Herrera used Burton’s fuel card to
purchase fuel also suggested guilty knowledge of the criminal activity. See
United States v. Vasquez, 677 F.3d 685, 694-95 (5th Cir. 2012).
      Burton correctly notes that phone records may be insufficient to show
participation in a drug conspiracy when there is no indication of who made the
calls and the subject matter of the conversations is unknown. See United
States v. Galvan, 693 F.2d 417, 419-20 (5th Cir. 1982).           However, the
significant number of phone calls that occurred among Burton, Herrera, and
the various phones connected to Garcia, did not exist in a vacuum. These
phone calls, viewed in conjunction with the inconsistent statements and other
evidence, support the jury’s finding that Burton, at the very least, had
constructive possession of the marijuana and knowingly participated in both
offenses. See Vargas-Ocampo, 747 F.3d at 301; Vasquez, 677 F.3d at 693-94;
United States v. Gardea Carrasco, 830 F.2d 41, 45 (5th Cir. 1987).
      Herrera also challenges both convictions. In regard to the conviction for
possession with intent to distribute, he concedes that he was driving the tractor
with the marijuana but contends that there was no evidence that he had
knowledge of the secret compartment. Addressing his conviction for conspiracy



                                       3
    Case: 15-40654     Document: 00513792456     Page: 4   Date Filed: 12/12/2016


                                  No. 15-40654

to possess with intent to distribute marijuana, Herrera argues that the
Government introduced no evidence of his direct involvement with Burton.
      Trial testimony regarding Herrera’s nervousness during the traffic stop
provided circumstantial evidence of his guilty knowledge. See Vasquez, 677
F.3d at 695. The value of the seized marijuana, his inconsistent statements
about the phone found in the truck, his employment status, and relationship
with Garcia also reflected Herrera’s guilty knowledge. See Ramos-Rodriguez,
809 F.3d at 822; Villarreal, 324 F.3d at 324. His experience as a driver and
the fact that an anomaly in the trailer panels went unreported despite his
inspection of the truck at a fuel station further suggested that Herrera knew
of the marijuana. See Vasquez, 677 F.3d at 695. In light of this evidence,
Herrera has not shown that the jury acted irrationally when it found beyond a
reasonable doubt that he was guilty of possession with intent to distribute
marijuana. See Vargas-Ocampo, 747 F.3d at 301.
      Although there was a lack of evidence establishing that he
communicated directly with Burton, Herrera’s use of Burton’s fuel card, his
possession of a piece of paper with Burton’s contact information, and the
numerous phone calls among the men support the jury’s finding that Herrera
knowingly participated in the conspiracy to distribute marijuana.             See
Vasquez, 677 F.3d at 693. Even assuming this evidence did not establish a
direct connection with Burton, Herrera need not know “the exact number or
identity of all the co-conspirators, so long as in some fashion he . . . knowingly
participates in the larger conspiratorial objectives.”         United States v.
Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992).
      Burton urges that the district court erred in adjusting his offense level
under U.S.S.G. § 3B1.1(c) for being an organizer, leader, manager or
supervisor. Burton’s assertion that Garcia and Herrera could have been the



                                        4
    Case: 15-40654    Document: 00513792456     Page: 5   Date Filed: 12/12/2016


                                 No. 15-40654

managers of the operation does not eliminate Burton from qualifying as a
leader or organizer with respect to the criminal conspiracy, since more than
one person may occupy a leadership or managerial role within a criminal
association. See § 3B1.1(c), comment. (n.4). In light of the evidence reflecting
that Burton recruited Herrera to be the driver and directed Herrera’s actions
through Garcia, the district court did not clearly err in adopting the
presentence report’s unrebutted factual finding that Burton was an organizer,
leader, manager, or supervisor of the criminal activity for purposes of the role
adjustment. See United States v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir.
2015).
      Finally, on plain error review, Herrera raises an issue based upon the
district court’s instruction to the jury regarding the admissibility of a
defendant’s criminal history, made in response to the government’s objection
to Burton’s counsel’s closing argument referencing “no evidence” that Burton
had a criminal history. Herrera argues that by explaining to the jury that
there are restrictions on admitting a defendant’s criminal history, the district
court essentially permitted the jury to infer that Herrera had a criminal
history. However, as Herrera concedes, the instruction did not constitute
evidence of his criminal history. Moreover, the district court correctly stated
that limitations exist on the admission of a defendant’s criminal history. See
FED. R. EVID. 404(b).    As such, Herrera has not shown any plain error
stemming from the district court’s instruction to the jury.
      The judgments of the district court are AFFIRMED.




                                       5
