     Case: 15-41516      Document: 00513622055         Page: 1    Date Filed: 08/03/2016




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

                                    No. 15-41516                                 FILED
                                  Summary Calendar                          August 3, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRENDA RODRIGUEZ-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-164-1


Before HIGGINBOTHAM, SOUTHWICK and GRAVES, Circuit Judges.
PER CURIAM: *
       Brenda Rodriguez-Garcia was convicted by a jury of conspiracy to
possess with intent to distribute and possession with intent to distribute 50
grams or more of methamphetamine or 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine, in violation
of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); 18 U.S.C. § 2. The district court
imposed a within-Guidelines sentence of 235 months of imprisonment and a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41516

five-year term of supervised release.       Rodriguez-Garcia was arrested and
charged following a February 9, 2015 vehicle inspection at a border patrol
checkpoint on Interstate 35 (I-35), north of Laredo, Texas.          During the
secondary inspection of the vehicle driven by Rodriguez-Garcia, approximately
34.9 kilograms of liquid methamphetamine were found concealed in the
vehicle’s running boards.
      Rodriguez-Garcia challenges her conviction and sentence in this appeal.
She argues that the evidence was insufficient to support her conviction because
the Government failed to prove beyond a reasonable doubt that she knew that
she was driving a vehicle loaded with a controlled substance; the Government
failed to prove that Rodriguez-Garcia knew the type and quantity of drug
involved in the offense; and the 235-month sentence was substantively
unreasonable because it was based almost entirely on the type and quantity of
the drug involved and did not account for the 18 U.S.C. § 3553(a) sentencing
factors as a whole.
      Because Rodriguez-Garcia preserved her challenge to the sufficiency of
the evidence, see FED. R. CRIM. P. 29, we review her challenge de novo. See
United States v. Mitchell, 792 F.3d 581, 582 (5th Cir. 2015). “Even when
examined de novo, review of the sufficiency of the evidence is highly deferential
to the verdict.” United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013)
(internal quotation marks and citation omitted). All reasonable inferences are
to be resolved in favor of the verdict. United States v. Resio-Trejo, 45 F.3d 907,
911 (5th Cir. 1995). Reversal is warranted only if the Government fails to
establish that, “after viewing the evidence and all reasonable inferences in the
light most favorable to the [Government], any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United




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States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).
         The elements of a conspiracy to possess a controlled substance with
intent to distribute are “(1) the existence of an agreement between two or more
persons to violate narcotics laws, (2) the defendant’s knowledge of the
agreement, and (3) his voluntary participation in the conspiracy.” United
States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008). The elements of the
substantive offense under § 841(a)(1) are knowing possession of a controlled
substance with intent to distribute it. United States v. Gamez-Gonzalez, 319
F.3d 695, 699 (5th Cir. 2003). In cases, like this one, where the drugs were
located in a secret compartment, “we have required additional circumstantial
evidence to support knowledge because of the possibility . . . that a third party
could conceal drugs in the vehicle of an unwitting defendant.” United States v.
Gil-Cruz, 808 F.3d 274, 277 (5th Cir. 2015), petition for cert. filed (Mar. 9, 2016)
(No. 15-9849).
         Rodriguez-Garcia   argues   that    the   circumstantial   evidence   was
insufficient to demonstrate that she had the requisite knowledge.               She
contends that she was an unwitting participant who was taken advantage of
by drug traffickers who exploited her relationship with her family to gain her
trust.
         While it may not be unreasonable to hypothesize that Rodriguez-Garcia,
a young woman with no criminal record who transported cars across the border
for a living, could have been unwittingly duped into transporting drugs across
the border, the evidence need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt.
United States v. Lankford, 196 F.3d 563, 575 (5th Cir. 1999). Moreover, there
was additional circumstantial evidence to support the knowledge element in



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                                  No. 15-41516

this case. There was evidence that Rodriguez-Garcia was paid significantly
more than usual for the job, that she led agents to believe that she owned the
vehicle when in fact the vehicle was going to be delivered to someone else–a
fact she omitted telling the agents at the inspection checkpoint, that she
appeared nervous during the inspection, that she gave different responses
regarding her point of origin in Mexico and her destination in the United
States, that she smirked when confronted about the drugs, and that both the
quantity and value of the drugs in the vehicle were significant. Given that the
jury was free to choose among reasonable constructions of the evidence and
that all reasonable inferences are to be resolved in favor of the verdict, see
Resio-Trejo, 45 F.3d at 911, we conclude that the jury could have found the
essential elements of the crime beyond a reasonable doubt, see Vargas-
Ocampo, 747 F.3d at 301.
      Rodriguez-Garcia also contends that the Government failed to prove that
she knew the type and quantity of drug involved in the offense.            As she
concedes, this argument is foreclosed. United States v. Betancourt, 586 F.3d
303, 308-09 (5th Cir. 2009).
      We next review Rodriguez-Garcia’s preserved challenge to the
substantive reasonableness of her sentence for abuse of discretion. See Gall v.
United States, 552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008). Although she argues that the district court
placed “undue emphasis on the nature and quantity of the drugs involved,” the
record reflects that the district court considered other § 3553(a) factors as well,
including Rodriguez-Garcia’s background and circumstances, the need for the
sentence to provide just punishment, and the need for the sentence to protect
the public from further crimes. We will not reweigh those factors. See Gall,
522 U.S. at 51-52; see also United States v. Campos-Maldonado, 531 F.3d 337,



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339 (5th Cir. 2008) (“[T]he sentencing judge is in a superior position to find
facts and judge their import under § 3553(a) with respect to a particular
defendant.”). That we “might reasonably have concluded a different sentence
was appropriate is insufficient to justify reversal of the district court.” Gall,
552 U.S. at 51. Rodriguez-Garcia failed to demonstrate that the district court
did not consider a factor that should have received significant weight, gave
significant weight to a factor it should have discounted, or made a clear error
of judgment when it balanced the relevant factors. See United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009). Accordingly, she has not rebutted the
presumption that the sentence imposed was reasonable.
      The judgment of the district court is AFFIRMED.




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