United States v. Antonio Escobar ( 2019 )

Case: 18-40717 Document: 00515106406 Page: 1 Date Filed: 09/05/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40717 FILED
Summary Calendar September 5, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTONIO ESCOBAR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:17-CR-529-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Antonio Escobar was convicted by a jury of possessing cocaine with
intent to distribute and sentenced to 120 months of imprisonment. On appeal,
he contends that (1) the district court erroneously denied his motion to
suppress evidence; (2) he was denied the right to present a complete defense;
(3) the Government’s closing argument was prejudicially improper; and (4) the
evidence was insufficient to prove his guilt. We affirm.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40717
Escobar fails to show that the district court erred in denying his motion
to suppress the cocaine that Border Patrol agents discovered in his truck. See
United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). The less-
than-three-minute immigration stop was sufficiently brief under the Fourth
Amendment, see United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976),
and Escobar’s nervous and evasive behavior, unusual responses to lawful
questions, and provision of a suspicious bill of lading gave agents sufficient
reasonable suspicion to extend the stop, see United States v. Ventura, 447 F.3d
375, 378 (5th Cir. 2006). Rodriguez v. United States, 135 S. Ct. 1609 (2015),
does not alter this calculus. See United States v. Tello, 924 F.3d 782, 785-89
(5th Cir. 2019).
We review Escobar’s unpreserved right-to-present-a-defense argument
for plain error. See United States v. Gibson, 875 F.3d 179, 193 (5th Cir. 2017);
United States v. Snarr, 704 F.3d 368, 382 (5th Cir. 2013). He cannot show
plain constitutional error because he fails to address whether the alleged error
by the district court seriously affects the fairness, integrity or public reputation
of judicial proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013). In any
event, Escobar fails to show that the court clearly or obviously violated his
right to present a defense. See United States v. Kuhrt, 788 F.3d 403, 421 (5th
Cir. 2015); Puckett, 556 U.S. at 129. The jury already knew Villanueva had
driven the truck immediately before Escobar. And the court did not prohibit
Escobar from introducing Villanueva’s prior conviction or calling Garcia to
elicit his false initial statements. To the extent that he raises a preserved
challenge to the evidentiary ruling, any error was harmless. See United States
v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011).
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Escobar likewise fails to show that the prosecutor’s single erroneous
recitation of the Government’s burden of persuasion on the knowledge element
of a 21 U.S.C. § 841 offense affected his substantial rights. See United States
v. Gracia, 522 F.3d 597, 599 (5th Cir. 2008); Puckett, 556 U.S. at 129. Given
the isolated nature of the remark in an otherwise unobjectionable closing
argument, the district court’s curative jury instruction, and the strength of the
evidence of guilty knowledge, the prosecutor’s singular comment did not cast
serious doubt on the correctness of the jury’s verdict. See Gracia, 522 F.3d at
603; Houston v. Estelle, 569 F.2d 372, 383 (5th Cir. 1978).
Finally, as Escobar concedes, his contention that the evidence was
insufficient to convict him under § 841 because the Government failed to prove
that he knew the specific type or quantity of drugs in his possession is
foreclosed. See United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir.
2009); United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003).
The judgment is AFFIRMED.
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