                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 21, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 06-2018
          v.                                          (D. New M exico)
 ELIZA RD O M OTA -GONZA LES,                     (D.C. No. CR-05-57-RB)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      Elizardo M ota-Gonzales was charged in a three-count indictment in the

United States District Court for the District of New M exico with (1) possession

with intent to distribute 50 kilograms or more of marijuana, see 21 U.S.C. § 841;

(2) conspiracy to distribute 50 kilograms or more of marijuana, see id. § 846; and

(3) reentry of a removed alien, see 8 U.S.C. § 1326(a). A jury convicted him on



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
all three counts, and he was sentenced to 51 months’ imprisonment. On appeal he

contends that there was insufficient evidence to convict him of the drug crimes.

W e affirm.

I.    B ACKGR OU N D

      On October 4, 2004, a Ford W indstar minivan in which M r. M ota-Gonzales

was a passenger was stopped at the United States Border Patrol checkpoint near

Alamogordo, New M exico. Border Patrol Agent Claude Claflin asked the driver,

Christol Hammonds, whether she was an American citizen, to which she

responded affirmatively. W hen Agent Claflin asked M r. M ota-Gonzales the same

question, he did not respond. Agent Claflin repeated the question, and M r. M ota-

Gonzales replied, “Huh?” Agent Claflin then asked where he was born.

M r. M ota-Gonzales answered that his birthplace was Colorado Springs. In

response to further questioning, M s. Hammonds said that they were traveling to

Alamogordo to pick up M r. M ota-Gonzales’s children, and M r. M ota-Gonzales

said that they had borrowed the van.

      Agent Claflin referred the van to the secondary inspection area, where his

dog alerted to the presence of drugs. A search of the van revealed about 200

pounds of marijuana hidden within the passenger-side door and the speaker box.

      M r. M ota-Gonzales was then interview ed by Border Patrol Agent Ernesto

M edina, who informed him that the van was loaded with marijuana. M r. M ota-

G onzales did not act surprised at this statement but simply nodded his head. H e

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then stated that he knew that the van was loaded with something, although he did

not know what. He also said that the van had been given to him and

M s. H am monds to attempt to go through the Alamogordo checkpoint, that the tw o

of them would be paid $2,500 upon reaching Alamogordo, and that he planned to

drop M s. Hammonds off in A lamogordo and drive to Oklahoma by himself. He

told Agent M edina that he was being escorted by two vehicles (apparently a

common technique among drug smugglers).

II.   D ISC USSIO N

      Citing United States v. M cM ahon, 562 F.2d 1192, 1196 (10th Cir. 1977),

M r. M ota-Gonzales contends that the evidence was insufficient for the jury to

convict him on the charges of conspiracy and possession of marijuana. He argues

that the evidence presented by the government showed only proximity to the

illegal activity. W e review this claim de novo, “viewing the evidence and the

reasonable inferences to be drawn therefrom in the light most favorable to the

government,” and reversing the conviction “only if no rational trier of fact could

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

United States v. Toles, 297 F.3d 959, 968 (10th Cir. 2002) (internal quotation

marks omitted).

      W e are not persuaded. M r. M ota-Gonzales knew he w as carrying some sort

of contraband and was being paid handsomely to get it past the Alamogordo

checkpoint. His only possible argument is that he did not know what the

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contraband was. But the jury could readily infer that either he knew the

contraband was marijuana or that his ignorance of the specific nature of what he

was carrying was due to deliberate avoidance of knowledge, which is no excuse,

see United States v. Delreal-Ordones, 213 F.3d 1263, 1268 (10th Cir. 2000) (“W e

established nearly forty years ago . . . that one may not willfully and intentionally

remain ignorant of a fact, important and material to his conduct, and thereby

escape punishment.” (internal quotation marks omitted)). The evidence was more

than sufficient to sustain the verdict.

III.   C ON CLU SIO N

       W e AFFIRM the judgment of the district court.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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