                                                              FILED
                                                  United States Court of Appeals
                   UNITED STATES COURT OF APPEALS         Tenth Circuit

                          FOR THE TENTH CIRCUIT                     February 3, 2020
                        _________________________________
                                                                  Christopher M. Wolpert
                                                                      Clerk of Court
    UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

    v.                                                 No. 18-4149
                                             (D.C. No. 2:16-CR-00020-DN-1)
    MARLON ALONZO SMITH,                                (D. Utah)

           Defendant - Appellant.
                       _________________________________

                           ORDER AND JUDGMENT *
                        _________________________________

Before TYMKOVICH, Chief Judge, HARTZ, and BACHARACH, Circuit
Judges.
               _________________________________

         This case grew out of a traffic stop in a remote outpost in Utah. Mr.

Marlon Smith, a black man, was stopped for speeding. When the police

officer expressed suspicion that the car contained drugs, Mr. Smith peeled

away. He was ultimately apprehended with a large quantity of

methamphetamine in the car.


*
      Oral argument would not materially help us to decide this appeal. We
have therefore decided the appeal based on the briefs. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
      The discovery of the drugs led to a conviction for possessing

methamphetamine with the intent to distribute. 21 U.S.C. § 841(a)(1). Mr.

Smith appeals the conviction, arguing that the government lacked

sufficient evidence of guilt and presented unfairly prejudicial expert

testimony by an unqualified witness. We reject these arguments and affirm

the conviction.

I.    The evidence of guilt was sufficient.

      We first conclude that the evidence sufficed to convict on the charge

of possessing methamphetamine with intent to distribute.

      A.    Test for Sufficiency of the Evidence

      On appeal, Mr. Smith argues for the first time that the evidence of

guilt was insufficient. Because he didn’t raise this argument in district

court, we review for plain error. United States v. Kaufman, 546 F.3d 1242,

1263 (10th Cir. 2008). But our test for plain error largely mirrors the test

that we would ordinarily apply for sufficiency of the evidence. United

States v. Flanders, 491 F.3d 1197, 1208 (10th Cir. 2007). When applying

the test for sufficiency of the evidence, we view the evidence and

reasonable inferences in the light most favorable to the government and

determine whether a reasonable jury could find guilt beyond a reasonable

doubt. Kaufman, 546 F.3d at 1263.




                                      2
     B.    Elements of the Offense

     To make this determination, we consider the elements of the crime:

(1) the defendant’s possession of the methamphetamine, (2) the

defendant’s knowledge of the methamphetamine, and (3) the defendant’s

intent to distribute the methamphetamine while it was in his possession.

United States v. Pulido-Jacobo, 377 F.3d 1124, 1131 (10th Cir. 2004). A

reasonable jury could find all of these elements.

     1.    Possession

     Possession may be actual or constructive. United States v. Hooks,

780 F.3d 1526, 1531 (10th Cir. 1986). The possession is actual when the

defendant knowingly has direct physical control. United States v. Turner,

553 F.3d 1337, 1343 (10th Cir. 2009).

     The factfinder could reasonably infer that Mr. Smith had direct

physical control of the methamphetamine because (1) he was the only

person in the vehicle and (2) he claimed to be driving cross-country in his

own rental car. Given these circumstances, the factfinder had little reason

to believe that the methamphetamine was someone else’s. See Pulido-

Jacobo, 377 F.3d at 1130 (stating that the factfinder can “infer that the

driver of a vehicle has knowledge of the contraband within it”).

     2.    Knowledge

     The factfinder could also reasonably find that Mr. Smith had known

about the methamphetamine and had concealed it under the carpet in the

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car. The carpet was missing a rivet, and Mr. Smith had a tool in his

luggage that would remove rivets. The jury could thus reasonably infer that

Mr. Smith had knowingly possessed the methamphetamine. 1

      Mr. Smith denies knowledge of the methamphetamine and alleges

that the police officers planted the drugs out of anger for the car-chase.

But why did Mr. Smith flee? He insists that as a black man, he feared

being stopped by two white police officers in an unpopulated area. But as

Mr. Smith neared a town, he turned around and led the police in a high-

speed chase back into a deserted area. Speeding away from the town

suggests that Mr. Smith was trying to evade capture rather than surrender

peacefully in a populated area.

      In any event, the jury needn’t have believed Mr. Smith’s explanation

for fleeing and could instead have believed that he fled because he knew

that he had methamphetamine inside his car. See United States v. Ibarra-

Diaz, 805 F.3d 908, 934 (10th Cir. 2015) (concluding that the defendant’s

flight from the scene supported a reasonable inference of the defendant’s

knowledge and culpability relating to the drugs found inside the car). And

irrespective of why Mr. Smith had fled, the factfinder could reasonably

reject this allegation that the officers had planted the drugs.




1
      The methamphetamine had been wrapped in the same material used in
a box addressed to Mr. Smith.
                                       4
      3.   Intent to Distribute

      The jury could also reasonably infer that Mr. Smith had intended to

distribute the methamphetamine. The 1178 grams of methamphetamine had

a street value ranging from about $90,000 to over $124,000. The high value

of the methamphetamine supports an inference of intent to distribute.

United States v. Powell, 982 F.2d 1422, 1430 (10th Cir. 1992). In addition,

an expert witness testified that Mr. Smith’s text messages had reflected

arrangements to get the methamphetamine and transport it for distribution.

See Part 2, below.

                                   * * *

      The factfinder could reasonably infer that Mr. Smith had knowingly

possessed the methamphetamine with the intent to distribute. We thus

reject Mr. Smith’s challenge to the sufficiency of the evidence.

II.   The district court did not err in permitting the government’s
      expert witness to testify about the meaning of text messages.

      The government’s evidence included expert testimony by a DEA

agent about the meaning of text messages between Mr. Smith and someone

named “Teddy.” The expert witness opined that the text messages related

to Mr. Smith’s arrangements to obtain the methamphetamine.

      Mr. Smith argues on appeal that the district court erred in allowing

the testimony because (1) the police officer lacked the necessary




                                     5
qualifications as an expert witness and (2) the testimony was unfairly

prejudicial. We reject both arguments.

      We review the challenge to the expert witness’s qualifications only

to determine whether the district court clearly abused its discretion. United

States v. Zamora, 784 F.2d 1025, 1028 (10th Cir. 1986). According to Mr.

Smith, the agent lacked enough education in linguistics to qualify as an

expert witness. But “qualification as an expert witness may come from

experience as well as education.” Fed. R. Evid. 702, advisory committee’s

note (2000). The agent testified that she had served in law enforcement for

roughly twenty years, had received extensive training, and had read

thousands of line sheets from recorded drug calls. Based on this

experience, she testified that she had developed a familiarity with code

words for drugs. Given this experience, the district court acted within its

discretion in regarding the witness as an expert qualified to give opinion

testimony about the meaning of the text messages. See, e.g., United States

v. Duran, 941 F.3d 435, 451 (10th Cir. 2019) (upholding the introduction

of expert testimony involving the use of coded language in drug

transactions based on a law-enforcement agent’s experience in drug-

trafficking cases).

      Mr. Smith also argues that the expert testimony was unfairly

prejudicial. But Mr. Smith didn’t make this argument in district court. We

thus consider only whether the ruling reflected plain error. United States v.

                                      6
Brooks, 736 F.3d 921, 929-30 (10th Cir. 2013). An error is “plain” only if

it was obvious. United States v. Rufai, 732 F.3d 1175, 1189 (10th Cir.

2013).

       We need not decide whether the district court erred. Even if it did, an

error would not have been obvious in light of our prior holdings and the

sparsity of Mr. Smith’s argument: We’ve “repeatedly held” that expert

testimony can help a jury to understand the terminology in drug

transactions, United States v. Quintana, 70 F.3d 1167, 1170–71 (10th Cir.

1995), and Mr. Smith does not explain why the expert testimony was

unfairly prejudicial.

III.   Conclusion

       We affirm. The evidence of guilt was sufficient, and the district court

did not abuse its discretion in allowing the expert testimony.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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