                                                                                           United States Court of Appeals
                                                                                                    Fifth Circuit
                                                                                                  F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                                 January 10, 2006
                                    FOR THE FIFTH CIRCUIT
                                                                                             Charles R. Fulbruge III
                                                                                                     Clerk


                                             No. 04-50641
                                           Summary Calendar


UNITED STATES OF AMERICA,

                                                                                             Plaintiff-
                                                           Appellee,

                                                  versus

JACQUELINE M. JACEK,

                                                                                       Defendant-
                                                           Appellant.

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                            Appeal from the United States District Court
                                   for the Western District of Texas
                                   USDC No. 2:03-CR-518-2-AML
                     -------------------------------------------------------------------

Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:*

       Jacqueline M. Jacek appeals her conviction and sentence for conspiracy to possess with intent

to distribute marijuana, conspiracy to import marijuana, possession of marijuana with intent to

distribute, and importation of marijuana. Jacek argues first that the evidence was insufficient on all

counts of conviction because the Government failed to establish that she had knowledge of the

marijuana secreted in the Suburban that she was driving.

       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       The argument fails. Viewing the evidence in the light most favorable to the prosecution, there

was ample circumstantial evidence of guilty knowledge. See United States v. Mendoza, 226 F.3d

340, 343 (5th Cir. 2000). Jacek was the driver of a Suburban containing 83.34 kilograms of

marijuana, valued at approximately $180,000, which had been placed inside the gas tank. On the

basis of Jacek’s admittedly odd conduct at the Eagle Pass port of entry, implausible stories,

inconsistent statements, and the large amount of marijuana involved, there was more than sufficient

evidence to support an inference by the jury that Jacek knew the Suburban contained marijuana. See

United States v. Ortega Reyna, 148 F.3d 540, 544 (5th Cir. 1998); United States v. Villarreal, 324

F.3d 319, 324 (5th Cir. 2003).

       Jacek avers that the district court erred (1) in admitting the testimony of Faline Reetz with

regard to the circumstances surrounding her February 2003 arrest and conviction for drug smuggling

and (2) in allowing Special Agent Edward Acuna to testify about two prior border seizures involving

marijuana secreted in Suburbans and the guilty-plea convictions resulting therefrom. Jacek avers that

this testimony was prejudicial as there was no evidence linking her to these incidents. Jacek contends

that the testimony amounted to impermissible character evidence under FED. R. EVID. 404(b), which

provides, in relevant part, that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.”

       Because Jacek objected to the introduction of Agent Acuna’s testimony with regard to prior

border seizures, the district court’s admission of the evidence is reviewed for abuse of discretion.

United States v. Cantu, 167 F.3d 198, 203 (5th Cir. 1999). If the district court abused its discretion,

the resulting error is reviewed for harmlessness. Id. However, as Jacek concedes, there was no

objection to Reetz’s testimony at trial. Absent a timely objection, this court will review the admission


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of Reetz’s testimony only for plain error. Id. at 204. Error is plain only when it is clear or obvious

and it affects the defendant’s substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002).

         The testimony that Jacek complains of was not within the purview of FED. R. EVID. P. 404(b)

because it was not “other crimes, wrongs, or acts” of the defendant. Rather, Acuna and Reetz’s

testimony merely described prior incidences at the Eagle Pass port of entry where older Suburbans

were discovered to have similar amounts of marijuana secreted in the gas tanks.

         Assuming arguendo that this testimony was not relevant to an issue other than Jacek’s

character and thus failed the test outlined in United States v. Beechum, 582 F.2d 898 (5th Cir.

1978)(en banc), the introduction of the evidence was harmless error because the jury would have

returned a guilty verdict even without it. See United States v. Tomblin, 46 F.3d 1369, 1387 (5th Cir.

1995); see also United States v. Rodriguez, 43 F.3d 117, 123 (5th Cir. 1995). The other evidence

against Jacek, as outlined above, was sufficient to support her convictions on the drug-trafficking

charges. Because the introduction of the testimony was harmless error, it did not amount to plain

error.

         Jacek argues, for the first time on appeal, that the district court erred in sentencing her under

a mandatory sentencing guidelines scheme found unconstitutional in United States v. Booker, 125 S.

Ct. 738, 756 (2005). Because Jacek raises the issue for the first time on appeal, plain error is the

correct standard of review. See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th

Cir.), cert. denied, 126 S. Ct. 267 (2005); see also United States v. Mares, 402 F.3d 511, 521

(5th Cir.), cert. denied, 126 S. Ct. 43 (2005). The district court committed error that is plain when

it sentenced Jacek under a mandatory sentencing guidelines regime. See Valenzuela-Quevedo, 407

F.3d at 732-33. Jacek, however, fails to meet her burden of showing that the district court’s error


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affected her substantial rights. See id. at 733-34; Mares, 402 F.3d at 521 . The district court’s

judgment is AFFIRMED.




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