     Case: 18-40760      Document: 00515180785         Page: 1    Date Filed: 10/30/2019




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

                                                                               FILED
                                                                           October 30, 2019
                                    No. 18-40760
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARIO ALBERTO LONGORIA-NUNEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:17-CR-222-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Following a trial, a jury convicted Mario Alberto Longoria-Nunez of one
count of conspiracy to possess with intent to distribute five kilograms or more
of cocaine and one count of aiding and abetting the possession of five kilograms
or more of cocaine, with intent to distribute. Longoria-Nunez now appeals his
convictions, arguing that the verdict form used by the district court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-40760

constructively amended his superseding indictment and that the evidence was
insufficient to support his convictions.
      The Fifth Amendment guarantees a defendant indicted by a grand jury
the right to be tried solely based on the grand jury’s allegations. See Stirone v.
United States, 361 U.S. 212, 215-18 (1960). Constructive amendment “occurs
when the trial court through its instructions and facts it permits in evidence,
allows proof of an essential element of the crime on an alternative basis
provided by the statute but not charged in the indictment.” United States v.
Phillips, 477 F.3d 215, 222 (5th Cir. 2007) (internal quotation marks and
citation omitted).
      Here, the superseding indictment alleged that each offense involved
“more than five (5) kilograms” of cocaine, “that is, approximately nineteen and
nine-tenths (19.9) kilograms of cocaine.”      Longoria-Nunez argues that the
special questions in the verdict form that asked whether each offense involved
five kilograms of cocaine should have asked, instead, whether each offense
involved 19.9 kilograms of cocaine. The special interrogatories did not concern
the validity of his convictions, however. Rather, the superseding indictment
alleged amounts of a controlled substance that triggered the enhanced
penalties under 21 U.S.C. § 841(b)(1)(A), and the jury questions were thus
directed to sentencing issues. See United States v. Daniels, 723 F.3d 562, 570-
72 (5th Cir.), modified in part on reh’g, 729 F.3d 496 (5th Cir. 2013). Moreover,
drug quantity and type are not “formal” elements of a drug conspiracy or
possession offense, id. at 572-74; see United States v. Gamez-Gonzalez, 319
F.3d 695, 699-700 (5th Cir. 2003), and either quantity of cocaine—five
kilograms or 19.9 kilograms—would trigger the same statutory penalties, see
§ 841(b)(1)(A); 21 U.S.C. § 846; 18 U.S.C. § 2. No constructive amendment
occurred. See Phillips, 477 F.3d at 222.



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                                  No. 18-40760

        Longoria-Nunez next challenges the district court’s denial of his motion
for a judgment of acquittal. He argues that the trial evidence was insufficient
to prove that he had actual knowledge of the cocaine concealed in the vehicle
he was driving. We review preserved sufficiency-of-the-evidence challenges de
novo. United States v. Alaniz, 726 F.3d 586, 600 (5th Cir. 2013). We will affirm
the verdict if, “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).
        When, as in this case, the illegal drugs are concealed in a hidden
compartment, the Government must present circumstantial evidence, beyond
mere control of a vehicle, that is suspicious in nature or demonstrates guilty
knowledge. See United States v. Lopez-Monzon, 850 F.3d 202, 206 (5th Cir.
2017.    Such circumstantial evidence may include, inter alia, evidence of
consciousness of guilt, conflicting or inconsistent statements, or an implausible
account of events. See id.
        At trial, the Government presented ample circumstantial evidence that
Longoria-Nunez’s story—that he was traveling from the United States-Mexico
border to Kansas City, or even to Arkansas, to purchase a thresher machine—
was simply implausible. See United States v. Diaz-Carreon, 915 F.2d 951, 955
(5th Cir. 1990). Longoria-Nunez provided inconsistent statements to Border
Patrol agents. See id. at 954-55. Moreover, the substantial quantity and value
of the cocaine provides further support for the jury’s verdict. See United States
v. Villareal, 324 F.3d 319, 324 (5th Cir. 2003). The evidence, when viewed in
the light most favorable to the Government, sufficiently establishes Longoria-
Nunez’s guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 319.
        AFFIRMED.



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