                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   September 28, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                            __________________________                Clerk of Court

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

          Plaintiff-Appellee,

 v.                                                     No. 06-2031
                                                         (D . N.M .)
 TO M A S PO N CE-G A RC IA ,                   (D.Ct. No. CR-04-1512 RB)

          Defendant-Appellant.
                        ____________________________

                                OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.



      Appellant Tomas Ponce-Garcia was convicted of one count of importation



      *
        This order and judgment is not binding precedent except under the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.
of marijuana under 21 U.S.C. § 952(a) and § 960(a)(1) and (b)(3), and one count

of possession with intent to distribute fifty kilograms and more of marijuana

under 21 U.S.C. § 841(a)(1) and (b)(1)(C). He now appeals his conviction,

contending insufficient evidence supported the jury verdict. W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm M r. Ponce-Garcia’s

conviction.



      On M ay 5, 2004, Steve Ehrlich, a Bureau of Customs and Border Protection

agent with twenty-five years of law enforcement experience, was on duty at the

port of entry in Columbus, New M exico. At trial, Agent Ehrlich testified that at

6:00 a.m. he noticed a red Chevy Cavalier, which he had seen entering the United

States the day before, enter the primary lane for entry again into the United

States. W hile the driver, M r. Ponce-Garcia, explained to another agent that he

was traveling to Deming, New M exico, Agent Ehrlich noticed M r. Ponce-Garcia

was “sitting higher in the car than he had the day prior”; “ the rear of the vehicle

seemed lower than it had the day prior”; and “his head was almost to the roof of

the car.” Based on his experience with smugglers at the port, Agent Ehrlich

suspected the vehicle contained some form of contraband. W hen Agent Ehrlich

looked into the back seat of M r. Ponce-Garcia’s car with the aid of a flashlight, he

saw ripples and humps which “were not normal.” M eanwhile, another officer

used a tool called a “buster” to check the corner of the rear seat and told Agent

                                          -2-
Ehrlich the vehicle w as “loaded” w ith contraband. Agent Ehrlich then asked M r.

Ponce-G arcia to step out of the vehicle, handcuffed him, and escorted him into

the main building. Agent Ehrlich, who was trained to detect drivers under the

influence of alcohol, detected neither the odor of alcohol nor any behavior

indicating M r. Ponce-G arcia was impaired during this period.



      Agent Ehrlich further testified that when he returned and moved M r. Ponce-

Garcia’s car to the secondary inspection area, he noticed the driver’s seat was

unusually high and “extremely hard to the touch,” and the inside of the vehicle

smelled “fairly strong” of marijuana. A Vehicle and Cargo Inspection System

(VACIS) image, or x-ray, of the vehicle showed the seats of the car w ere

“extremely dense.” W hen officers searched the car, they found a total of 191

marijuana bundles, weighing 210 pounds, hidden in the back rests of the seats and

between the foam padding and springs of the seats. During trial, the government

offered, without objection, a series of photos taken that day of M r. Ponce-Garcia,

his vehicle, and the contraband as it w as removed from the seats in various stages.

Another agent testified the value of the marijuana totaled approximately $84,000,

with the value increasing if the marijuana had been transported away from the

international border. 1



      1
        M r. Ponce-Garcia stipulated 191 bundles of marijuana, with a total
weight of 210.5 gross pounds or 95.68 net kilograms, were found in the vehicle.

                                         -3-
      At trial, agents also testified smugglers often make “trial runs” through the

port of entry to determine the type and thoroughness of the inspections, and the

automated system at the port confirmed M r. Ponce-Garcia’s car crossed into the

United States the day before at a similar time – 6:09 a.m. Agent Ehrlich also

testified 6:00 a.m. is the time farm workers typically cross the border, but most of

those workers travel in vehicles dirty from field travel and which contain several

workers, their lunches, farm tools, and other personal items. In contrast, M r.

Ponce-G arcia drove alone in a clean car w ithout personal items or tools.



      After agents found the marijuana in his car, Immigration and Customs

Enforcement Agents Alfredo Chavez, Jr., and Brian Thompson interview ed M r.

Ponce-G arcia. A ccording to Agent Chavez, M r. Ponce-Garcia appeared to

understand his questions and did not seem to be under the influence of alcohol or

drugs. He testified M r. Ponce-Garcia told him he was unemployed and he bought

the vehicle the day before at 4:00 p.m. in M exico from a man named “Octavio”

for $100. Although he claimed he was not planning to buy a vehicle in M exico,

he told the agent he could not pass up a deal that good. He also stated this was

the first time he drove the vehicle across the border and did so for the purpose of

traveling to Deming to change the vehicle papers to his name.



      Agent Thompson testified “mules” are often used to transport narcotics and

                                         -4-
defined a “mule” as someone hired to transport drugs across the border into the

United States. He also testified the fingerprints of those acting as “mules” are not

usually found on the concealed drugs because “mules” are not typically involved

in packaging or concealing the drugs placed in the vehicle.



      After the government concluded its case-in-chief at trial, M r. Ponce-

Garcia’s counsel moved for a directed verdict of acquittal on grounds M r. Ponce-

Garcia did not admit knowledge of the existence of the contraband or hold title to

the vehicle, and any incriminating evidence was destroyed when agents tore the

vehicle’s seats apart. The district court denied the motion, holding sufficient

evidence established M r. Ponce-Garcia knew about the contraband because he

was the vehicle’s sole occupant, it contained 191 bundles of marijuana which

were obvious or could be felt, the vehicle smelled of marijuana, and M r. Ponce-

Garcia’s statement he purchased the vehicle the day before negated the fact it was

titled in someone else’s name.



      M r. Ponce-Garcia then offered evidence in support of his case-in-chief

through the testimony of Clarissa M cClintock, the laboratory manager at M imbres

M emorial Hospital in D eming, New M exico. She testified the blood test

conducted on M r. Ponce-Garcia the day of his arrest indicated a blood alcohol

level of 52.3 milligrams per deciliter, which showed he experienced an elevated

                                         -5-
level of alcohol which could interfere with medication or treatment but would not

necessarily render an individual intoxicated or impaired.



      At the conclusion of the trial, a jury convicted M r. Ponce-Garcia of one

count of importation of marijuana under 21 U.S.C. § 952(a) and § 960(a)(1) and

(b)(3), and one count of possession with intent to distribute fifty kilograms and

more of marijuana under 21 U.S.C. § 841(a)(1) and (b)(1)(C). Prior to

sentencing, M r. Ponce-Garcia’s counsel filed a motion for judgment of acquittal

or a new trial on grounds insufficient or incompetent evidence supported the

jury’s verdict. In support of his motion, M r. Ponce-Garcia claimed no competent

evidence existed establishing the offense occurred in the United States and the

District of New M exico because: 1) the government did not offer the video

recording of his entry and arrest as evidence; 2) the agent who first detained and

questioned him did not testify at trial; and 3) another officer on duty the day

before did not testify regarding M r. Ponce-Garcia crossing the border the day

before. Following the government’s opposition to the motion, the district court

issued a memorandum opinion and order denying M r. Ponce-Garcia’s motion for

acquittal or a new trial. After reviewing the record, the parties’ arguments, and

the applicable law and then articulating in detail the evidence supporting the

verdict, the district court determined substantial, competent evidence established

M r. Ponce-Garcia committed the criminal offenses for which he was convicted in

                                          -6-
the United States and the District of New M exico.



      Next, a probation officer prepared a presentence report, calculating M r.

Ponce-Garcia’s base offense level at 24 under United States Sentencing

Guidelines (“G uidelines” or “U .S.S.G.”) § 2D1.1(a)(3). After factoring in M r.

Ponce-G arcia’s criminal history at Category I, the probation officer calculated his

sentencing range at fifty-one to sixty-three months imprisonment.



      M r. Ponce-Garcia did not file formal written objections to the presentence

report, but prior to sentencing his counsel submitted a letter requesting a role

adjustm ent under U .S.S.G . § 3B 1.2 for the purpose of reducing his sentence. At

sentencing, his counsel argued a role adjustment was appropriate due to M r.

Ponce-Garcia’s alcohol-related poor health, his lack of sophistication with respect

to the marijuana organization, and his intoxication and inability to comprehend

the circumstances at the time of the incident. In a cursory manner, his counsel

also suggested insufficient evidence supported the jury verdict because no

evidence established M r. Ponce-Garcia’s fingerprints were on the packaged and

loaded contraband. After considering M r. Ponce-Garcia’s request for a role

adjustment and the government’s objections, the district court granted M r. Ponce-

Garcia a two-point role adjustment, resulting in a Guidelines range of forty-one to

fifty-one months, and sentenced him to forty-one months imprisonment.

                                          -7-
      On appeal, M r. Ponce-Garcia contests the district court’s denial of his

motion for acquittal on grounds the government presented insufficient evidence to

support the jury’s verdict. Instead of continuing his claim the offense happened

outside the jurisdiction of this country and the district court, M r. Ponce-Garcia

now renews the same claim raised at trial – that the government presented no

evidence to show he knew the marijuana was in the car at the time of his arrest.

Specifically, he argues no prints, residue, or other physical link existed between

M r. Ponce-Garcia and the marijuana because: 1) the vehicle was titled to

someone else; 2) irregularities in the vehicle were only visible w ith a flashlight,

an x-ray machine, and other tools; 3) he was not acting nervously or suspiciously;

4) agents found no receipts or significant cash showing he smuggled narcotics; 5)

no evidence established he noticed the raised seat and the smell of contraband,

which he would not have noticed given his intoxication; and 6) no one identified

him as the driver of the same vehicle the day before. Finally, he argues no

reasonable person would place valuable contraband in a car with a drunk driver as

a “mule” for the purpose of going through a checkpoint inspection.



      To begin, we rely on our decision in United States v. Serrata, 425 F.3d 886

(10th C ir. 2005), in articulating the standard of review and other applicable law :

      W e review de novo whether the prosecution presented sufficient
      evidence to support a conviction. In conducting this review ... we
      ask whether, taking the evidence – both direct and circumstantial,

                                          -8-
      together with the reasonable inferences to be drawn therefrom – in
      the light most favorable to the government, a reasonable jury could
      find the defendant guilty beyond a reasonable doubt. W e will not re-
      weigh the evidence or assess the credibility of witnesses. Under this
      standard, we will not reverse a conviction ... unless no rational trier
      of fact could have reached the disputed verdict. The evidence
      necessary to support a verdict need not conclusively exclude every
      other reasonable hypothesis and need not negate all possibilities
      except guilt. Instead, the evidence only has to reasonably support the
      jury’s finding of guilt beyond a reasonable doubt.

Id. at 895 (quotation marks and citations omitted). Because M r. Ponce-Garcia

presented his case-in-chief after the district court denied his motion for judgment

of acquittal, he waived his right to limit our review to the government’s case-in-

chief alone, and we consider the entire record on appeal. See United States v.

Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004).



      Applying these principles, it is apparent the evidence offered at trial

reasonably supported the jury’s finding of guilt beyond a reasonable doubt. As

the district court pointed out, M r. Ponce-Garcia was the driver and sole occupant

of the vehicle, it smelled of marijuana and contained 191 bundles which w ere

“obvious” in the seats or could be felt, and “Agent Ehrlich recognized the driver

and the vehicle from the day before” and “[a]t trial, ... identified the driver as

Ponce[-Garcia].” The district court further noted Agent Ehrlich also testified “the

vehicle looked different than it did the day before because Ponce[-Garcia] was

sitting higher in the vehicle and the back of the vehicle was riding lower.” The



                                          -9-
jury clearly credited this evidence, as well as Agent Ehrlich’s testimony the

driver’s seat was unusually high and extremely hard to the touch, M r. Ponce-

Garcia’s head almost touched the ceiling, and ripples and humps in the seats

“were not normal,” for the purpose of determining M r. Ponce-Garcia knowingly

comm itted the offenses for which it convicted him. The agents’ use of an x-ray

or imaging device, a flashlight, and a “buster” to assist them did not establish M r.

Ponce-Garcia had no knowledge of the existence of the bundles of marijuana,

especially since their presence in the vehicle was obvious through smell, touch,

and unassisted sight, as M r. Ehrlich initially noticed the driver riding higher in his

seat well before using the aid of a flashlight. In addition, even though the

government did not provide evidence of M r. Ponce-Garcia’s fingerprints on the

bundles of marijuana, it was not unreasonable for the jury to credit the testimony

of another agent that fingerprints of “mules” transporting contraband are often not

found on the contraband or its packaging.



      In crediting the government’s evidence, the jury also plainly rejected M r.

Ponce-Garcia’s claim he bought the vehicle the day before in M exico from a man

named “Octavio” for $100 and it was the first time he drove the vehicle across the

border. W hile M r. Ponce-Garcia now contends he was too intoxicated to notice

any signs the vehicle contained marijuana, the evidence at trial indicated he did

not appear or act intoxicated and that while he may have had an elevated level of

                                          -10-
alcohol which could interfere with medication or treatment, it was not necessarily

a level w hich w ould render an individual intoxicated or impaired. In addition, w e

have long determined it is permissible to infer that the owner or driver of a

vehicle has knowledge of the contraband found within it, especially in

circumstances where there is a large amount of contraband with a high street

value and the driver or owner is the sole occupant of the vehicle. See United

States v. Badilla, 419 F.3d 1128, 1132 n.1 (10th Cir. 2005), cert. denied, 126 S.

Ct. 1344 (2006); United States v. Cota-M eza, 367 F.3d 1218, 1224 (10th Cir.),

cert. denied, 543 U.S. 876 (2004); United States v. Rodriguez, 192 F.3d 946, 949

(10th Cir. 1999). Contrary to M r. Ponce-Garcia’s assertion, it is unlikely

someone would entrust a vehicle containing such a large amount of high-value

contraband to someone who did not know of its presence. See Badilla, 419 F.3d

at 1132 n.1.



      As to M r. Ponce-Garcia’s other contentions he was not acting nervously or

suspiciously and agents found no receipts or significant cash showing he

smuggled narcotics, such evidence was not necessary for a reasonable or rational

jury to render a guilty verdict under the other circumstances presented, and, as

previously stated, “[t]he evidence necessary to support a verdict need not

conclusively exclude every other reasonable hypothesis and need not negate all

possibilities except guilt” but “only has to reasonably support the jury’s finding

                                         -11-
of guilt beyond a reasonable doubt.” Serrata, 425 F.3d at 895. After considering

the relevant direct and circumstantial evidence, “together with the reasonable

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

government,” we can easily conclude “a reasonable jury could find the defendant

guilty beyond a reasonable doubt.” Id.



      For these reasons, we A FFIRM M r. Ponce-G arcia’s conviction.



                                      Entered by the C ourt:

                                      W ADE BRO RBY
                                      United States Circuit Judge




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