     Case: 11-40726     Document: 00511830500         Page: 1     Date Filed: 04/23/2012




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

                                                                            FILED
                                                                           April 23, 2012
                                     No. 11-40726
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARIO GARCIA-CHAVEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-204-2


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Mario Garcia-Chavez appeals his conviction for conspiracy to possess with
intent to distribute 53.42 kilograms of marijuana and possession with intent to
distribute 53.42 kilograms of marijuana. See 21 U.S.C. § 841(a)(1), (b)(1)(C);
§ 846. Garcia-Chavez argues that the evidence was insufficient to establish that
he (1) knowingly and intentionally conspired to possess with intent to distribute
marijuana or (2) knowingly and intentionally possessed with intent to distribute
marijuana.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40726    Document: 00511830500       Page: 2   Date Filed: 04/23/2012

                                   No. 11-40726

      Garcia-Chavez moved for a “directed verdict” at the close of the
Government’s case-in-chief, but he failed to renew the motion at the close of all
evidence. See United States v. Martin Linen Supply Co., 430 U.S. 564, 567 n.5
(1997) (noting that FED. R. CRIM. P. 29(a) substituted the term “judgment of
acquittal” for “directed verdict” and that the change was purely formal). Thus,
review is for plain error. See United States v. Delgado, __ F.3d __, No. 07-41041,
2012 WL 574012, at *4-5 (5th Cir. Feb. 28, 2012) (en banc); United States v.
Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en banc). He must show (1) an error
or defect, (2) that was clear or obvious, and (3) that affected his substantial
rights. See Delgado, 2012 WL 574012, at *4. If he meets those three prongs,
this court has the discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id. Applying
the plain error standard in the sufficiency of the evidence context, reversal is
warranted only upon a showing of “a manifest miscarriage of justice.” Id. at *5;
Pierre, 958 F.2d at 1310. The court will find the requisite “‘obviousness’” only if
“‘the record is devoid of evidence pointing to guilt or if the evidence is so tenuous
that a conviction is shocking.’” Delgado, 2012 WL 574012, at *5 (quoting United
States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007)).
      To sustain Garcia-Chavez’s conviction for the drug conspiracy, the
Government was required to prove that (1) two or more people entered into an
agreement or conspiracy to possess marijuana with the intent to distribute it,
(2) Garcia-Chavez knew of the conspiracy, and (3) he willfully joined and
participated in the conspiracy. See United States v. Franklin, 561 F.3d 398, 402
(5th Cir. 2009). The Government may prove its case by 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).
      Contrary to Garcia-Chavez’s suggestion that the evidence at his trial was
purely circumstantial, the Government introduced through Dearing’s testimony
ample direct evidence of Garcia-Chavez’s participation in the conspiracy to

                                         2
   Case: 11-40726   Document: 00511830500      Page: 3   Date Filed: 04/23/2012

                                  No. 11-40726

possess with intent to distribute marijuana. See, e.g., United States v. Garcia,
567 F. 3d 721, 732 (5th Cir. 2009) (noting that testimony that witness
saw defendant serve as a “lookout” was direct evidence that defendant was
acting as a lookout for a marijuana operation); see generally Jones v. Robinson
Prop. Group, L.P., 427 F.3d 987, 992 (5th Cir. 2005) (“Direct evidence is evidence
which, if believed, proves the fact without inference or presumption.”). Garcia-
Chavez is, in essence, asking this court to assess Dearing’s credibility and weigh
the evidence, which we will not do. See United States v. Delgado, 256 F.3d 264,
273-74 (5th Cir. 2001).
      Moreover, the jury may have found it implausible that although the
weather was exceptionally cold and Garcia-Chavez’s health was fragile, Garcia-
Chavez, who was in possession of $160, chose to travel with Dearing by boat to
Corpus Christi to visit a family member rather than to use another means of
transportation. Implausible explanations can constitute evidence of guilty
knowledge. United States v. Villareal, 324 F.3d 319, 325 (5th Cir. 2003); United
States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir. 1990). Contrary to
Garcia-Chavez’s suggestion, the evidence did not consist merely of evidence
placing him at the scene of a drug smuggling endeavor. See United States v.
Mendoza, 226 F.3d 340, 343 (5th Cir. 2000).
      In order to sustain a conviction for a controlled substances violation
pursuant to § 841, the Government had to prove that Garcia-Chavez knowingly
possessed the marijuana with the intent to distribute. United States v. Mata,
491 F.3d 237, 242 (5th Cir. 2007).       Although the knowledge element for
possession of contraband is rarely proven by direct evidence, United States v.
Lopez, 74 F.3d 575, 577 (5th Cir. 1996), Dearing testified at trial that Garcia-
Chavez asked for his help in smuggling marijuana and that Garcia-Chavez
delivered the marijuana to the hotel parking lot and helped to repackage the
marijuana before placing it back into the black boxes. Garcia-Chavez’s attempt



                                        3
  Case: 11-40726    Document: 00511830500    Page: 4   Date Filed: 04/23/2012

                                No. 11-40726

to persuade this court to assess Dearing’s credibility and reweigh the evidence
is unavailing. See Delgado, 256 F.3d at 273-74.
      The record is not devoid of evidence that Garcia-Chavez conspired to
possess with intent to distribute marijuana and possessed with intent to
distribute marijuana. See Delgado, 2012 WL 574012, at *5; Phillips, 477 F.3d
at 219. The judgment of the district court is AFFIRMED.




                                      4
