                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS          June 22, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 05-51025
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,
versus

EUGENE BOSTON, JR.,

                                         Defendant-Appellant.


                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 5:04-CR-459-ALL
                        - - - - - - - - - -

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     On the morning of August 3, 2004, Eugene Boston, Jr., and

his girlfriend, Norma Buckley, were in Buckley’s car.      Boston was

driving; Buckley was in the passenger seat.   Police stopped the

vehicle and arrested Boston on outstanding warrants.     In a search

incident to the arrest, police found 21.23 grams of cocaine base

concealed in a hidden compartment in the car’s dashboard.

     In a jury trial, Boston was found guilty of two counts of

drug-related offenses.   Count One was for possession of more than

five grams but less than 50 grams of cocaine base with intent to

distribute, in violation of 21 U.S.C. § 841(a) and (b), and Count

     *
      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this opinion should not be published and is not precedent except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.
                           No. 05-51025
                                -2-

Two was for possession of more than five grams of cocaine base,

in violation of 21 U.S.C. § 844(a).   The district court entered

convictions on both counts, sentenced Boston to two concurrent

prison terms of 120 months and two concurrent supervised-release

terms of eight years, and assigned a $200 special assessment.

Boston now appeals.

     Boston contends the trial evidence was insufficient to

support the knowledge element of his convictions.    In a

sufficiency of the evidence claim, “the relevant question is

whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979).     See also United

States v. Lopez-Urbina, 434 F.3d 750, 757 (5th Cir.), cert.

denied, 126 S. Ct. 672 (2005).   The court does “‘not consider

whether the jury correctly determined guilt or innocence, [only]

whether the jury made a rational decision.’”     Lopez-Urbina, 434

F.3d at 757 (quoting United States v. Rivera, 295 F.3d 461, 466

(5th Cir. 2002)) (alteration in original).

     “The general rule in this circuit is that knowledge can be

inferred from control over the vehicle in which the drugs are

hidden if there exists other circumstantial evidence that is

suspicious in nature or demonstrates guilty knowledge.”     United

States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993) (internal

quotation omitted).   Boston contends that the Government failed

to present sufficient evidence from which the jury could have

rationally inferred that Boston knew about the cocaine base
                            No. 05-51025
                                 -3-

hidden in Buckley’s car.    We disagree.

     Boston was driving the vehicle, and the hidden compartment

was accessible from the driver’s seat.     In addition, a

surveillance officer had observed Boston “tinkering” under the

hood of the vehicle before he and Buckley drove away.       The same

officer testified that the dashboard had “obvious” alterations

and that it was “kind of torn up.”    The officer also described

seeing a flat-blade screwdriver wedged into a seam in the trim on

the dashboard’s console.    The trim on the driver’s side was

chipped, indicating that it had been pried open.     The drugs were

located behind the damaged trim.    In addition to the evidence in

the car, Boston and Buckley had just come from staying overnight

at Buckley’s apartment.    In the apartment, the police found

equipment and materials consistent with the manufacture of

cocaine base.   The equipment—an electronic scale, a microwave-

oven carousel, and a Pyrex plate—all tested positive for cocaine.

On the basis of the evidence presented, a rational trier of fact

could have found that Boston knew about the cocaine base

concealed in the car’s dashboard.    We, therefore, reject Boston’s

challenge to the sufficiency of the evidence.

     As the Government concedes, on the facts of this case,

Boston’s convictions were multiplicitous.     The Count Two

conviction of possession of cocaine base, under 21 U.S.C. §

844(a), was a lesser included offense of the Count One conviction

of possession of cocaine base with intent to distribute, under 21

U.S.C. § 841(a) and (b).    Under double-jeopardy principles, the

lesser included offense, and the sentence for that offense, must
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                                  -4-

be vacated.   United States v. Brito, 136 F.3d 397, 408 (5th Cir.

1998).   See also Rutledge v. United States, 517 U.S. 292, 296

(1996) (citing Blockburger v. United States, 284 U.S. 299, 304

(1932)).   Accordingly, we affirm the Count One conviction and

vacate the Count Two conviction.

     Where it is clear that the dual convictions did not lead the

district court to impose a harsher sentence, there is no need to

remand for resentencing.     See United States v. Narviz-Guerra, 148

F.3d 530, 534 (5th Cir. 1998).    Here, aside from the $200 special

assessment, it is clear that the same 120-month sentence would be

imposed.   The district court’s original sentence is the statutory

minimum sentence.     See 21 U.S.C. § 841(b)(1)(B).   Vacating the

Count Two conviction does not affect the statutory minimum of the

Count One conviction.    We, therefore, adjust the special

assessment to $100 and do not remand for resentencing.

     Boston argues that his prison sentence violates his due-

process rights because his prior convictions were neither

submitted for proof to a jury nor admitted by him.     This argument

is foreclosed.     United States v. Ochoa-Cruz, 442 F.3d 865, 868

(5th Cir. 2006).

     We AFFIRM the Count One conviction and sentence under 21

U.S.C. § 841(a) and (b) for possession of cocaine base with

intent to distribute.    We VACATE the Count Two conviction and

sentence under 21 U.S.C. § 844(a) for possession of cocaine base.

We MODIFY the district court’s judgment to impose only a $100

special assessment.    Any money paid by Boston in excess of $100

toward the erroneous special assessment should be refunded.
