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

                                                                  FILED
                                                                March 24, 2008
                                No. 07-40123
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RICARDO CARMONA

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Eastern District of Texas
                           USDC No. 4:06-CR-180-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Ricardo Carmona appeals his convictions for
conspiracy to distribute or possess with intent to distribute marijuana and
possession with intent to distribute marijuana. Carmona contends that the
district court erred in denying his motion for a judgment of acquittal, insisting
that the evidence was insufficient to show that he had knowledge of the
marijuana hidden in the trailer. As Carmona did not preserve his sufficiency
challenge by renewing his acquittal motion at the close of all the evidence, our

      *
      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should not be published and is not precedent except under the limited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. 07-40123

review is limited to deciding whether there was a manifest miscarriage of justice.
See United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004). A miscarriage of
justice exists “only if the record is devoid of evidence pointing to guilt, or . . . the
evidence on a key element of the offense was so tenuous that a conviction would
be shocking.” United States v. Laury, 49 F.3d 145, 151 (5th Cir. 1995).
      Carmona has not shown that his conviction resulted in a manifest
miscarriage of justice. See Avants, 367 F.3d at 449. The evidence established
that Carmona was nervous when he gave Trooper Burr his commercial driver’s
license. The trailer bore a padlock of the kind not often used in the trucking
industry. Aldolfo Armendariz, the second driver, testified that he and Carmona
had agreed to transport the marijuana for Oscar Reza and that he and Carmona
knew there was marijuana in the trailer. In a postarrest interview, Carmona
stated that he did not know what was in the additional boxes not listed on the
shipping documents, but that he knew it was something illegal. All of this
circumstantial evidence demonstrates guilty knowledge. See United States v.
Villarreal, 324 F.3d 319, 324 (5th Cir. 2003). Further, the large quantity and
value of the drugs being transported is indicative of guilty knowledge, as it is
unlikely that an unknowing participant would be entrusted with such valuable
cargo. See id. In view of this evidence, Carmona has not shown that “the record
is devoid of evidence pointing to guilt, or . . . the evidence on a key element of the
offense was so tenuous that a conviction would be shocking.” See Laury, 49 F.3d
at 151.
      Carmona also asserts that the district court abused its discretion in giving
a jury instruction on deliberate indifference; however, Carmona has not shown
such abuse. At trial, Carmona’s counsel did argue that Carmona did not know
that the marijuana was hidden in the trailer. Carmona, a professional truck
driver with several years of experience, told Agent Robinson that he noticed that
there were the boxes in the front of the trailer not listed on the shipping
documents before he took the trailer to be loaded with fitness equipment and that

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he was not given any instructions concerning where to deliver the extra boxes.
He nevertheless supervised the loading of the fitness equipment and proceeded
to transport the load to Chicago. As noted, Carmona’s postarrest statement
reflected that he did not know what was in the additional boxes but that he did
know that something illegal was in the truck. This supports an inference that
Carmona was aware of a high probability that these boxes contained illegal
substances and that he purposely attempted to avoid learning about the illegal
cargo. See United States v. Threadgill, 172 F. 3d 357, 368 (5th Cir. 1999).
Carmona has not shown that the district court abused its discretion in giving the
deliberate indifference instruction to the jury. See United States v. Pankhurst,
118 F.3d 345, 350 (5th Cir. 1997).
      Carmona’s argument that the instruction allowed the jury to convict him
if he “should have known” that the drugs were inside the boxes lacks merit. The
first prong of this test protects a defendant from being convicted for what he
should have known. United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir.
1990).
AFFIRMED.




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