United States v. Rodriguez ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 1, 2006
Charles R. Fulbruge III
Clerk
No. 05-40009
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVLYN RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:04-CR-1217-ALL)
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
A jury convicted Defendant-Appellant Evlyn Rodriguez of
conspiracy to possess with intent to distribute and possession with
intent to distribute less than fifty kilograms of marihuana, in
violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) and (b)(1)(D).
Rodriguez contends that the evidence was insufficient to support
her conviction and that the district court committed reversible
error under United States v. Booker, 543 U.S. 220 (2005), when it
*
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this opinion should not be published and is not precedent except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.
sentenced her under the mandatory Guidelines regime that was found
unconstitutional in Booker.
As Rodriguez properly preserved the sufficiency issue by
moving for a judgment of acquittal on both indictment counts at the
close of the government’s case and at the close of all evidence, we
review this issue de novo. See United States v. Izydore, 167 F.3d
213, 219 (5th Cir. 1999). In evaluating sufficiency of evidence,
we view all evidence and all reasonable inferences drawn from it in
the light most favorable to the verdict. Id.
Circumstantial evidence adduced at Rodriguez’s trial
established “1) the existence of an agreement between two or more
persons to violate federal narcotics laws; 2) the defendant’s
knowledge of the agreement; and 3) the defendant’s voluntary
participation in the agreement.” See United States v. Gonzales, 79
F.3d 413, 423 (5th Cir. 1996). Evidence also indicated that
Rodriguez knowingly possessed with intent to distribute the
controlled substance. See United States v. Solis, 299 F.3d 420,
446 (5th Cir. 2002).
When we view it in the light most favorable to the verdict,
the evidence establishes that at least three people —— Rodriguez,
Erasmo Gallegos, and “Ricky” —— were involved in an agreement to
violate federal narcotics laws. Gallegos, Rodriguez’s co-worker,
borrowed their boss’s vehicle so that Gallegos could make a trip
from the vicinity of Arlington, Texas to Laredo. While driving
that vehicle alone on the following day Rodriguez was stopped at a
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checkpoint. In the vehicle’s undercarriage, bundles of marihuana
weighing in the aggregate approximate 22.9 kilograms were found.
Gallegos’s had told his boss that the vehicle was being
borrowed to visit his sick grandmother. She continued the sick-
grandmother theme first when Rodriguez told one of the agents at
the checkpoint that she had traveled from Arlington to Laredo to
visit her sick grandmother, and again when she told a different
agent that she went to Laredo to visit Gallegos’s sick grandmother.
The inconsistencies in the stories also indicate that Rodriguez was
either nervous or lying to law enforcement personnel, both of which
are indicative of knowing participation in an agreement to break
the law. See United States v. Paul, 142 F.3d 836, 840 (5th Cir.
1998).
As for knowledge of the existence of the conspiracy and the
presence of marihuana in the vehicle, the value of the marihuana
concealed in the undercarriage was between $200 to $700 per pound.
A jury could infer that a drug smuggler would not be likely to
entrust such a large quantity of drugs to a person with no
knowledge of their presence. See United States v. Ramos-Garcia,
184 F.3d 463, 465-66 (5th Cir. 1999). Furthermore, several law
enforcement officials testified that Rodriguez appeared to be
nervous while the vehicle was being inspected at the checkpoint.
From this testimony, the jury could infer that Rodriguez’s
nervousness was the result of her knowledge of (1) the presence of
the contraband in the vehicle, and (2) the likelihood that it would
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be discovered. See United States v. Jones, 185 F.3d 459, 464 (5th
Cir. 1999). Such a large quantity of the controlled substance is
indicative that Rodriguez was acting with the intent to distribute
it. See United States v. Prieto-Tejas, 779 F.2d 1098, 1101 (5th
Cir. 1986).
Additionally, Rodriguez’s statements implicated “Ricky” as a
third person in the conspiracy. Rodriguez told officials that
while she was in Laredo, she met Ricky, who told her that the
taillight on the vehicle was broken. Rodriguez told the officials
that she let Ricky take the vehicle for an hour to have the
taillight fixed. In contradiction, however, the government
produced testimony indicating that the vehicle’s taillights were in
working order before Gallegos took the vehicle. Also, it is
unlikely that a person would allow an unaccompanied stranger, whose
last name she did not know, to take her boss’s vehicle to get it
fixed.
Additional evidence establishes that Rodriguez took an
indirect route from Laredo to return to Arlington. This justifies
an inference that she did so for the purpose of avoiding
apprehension.
We conclude from all this that the jury acted rationally in
determining that Rodriguez was an active participant in the
conspiracy to transport the drugs and that she was attempting to
avoid detection. See United States v. Lopez-Urbina, F.3d ,
2005 WL 1940118, *3 (5th Cir. Aug. 15, 2005) (this court does not
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consider whether the jury correctly determined guilt or innocence
but rather whether the jury’s decision was rational). The jury
also acted rationally in concluding that Rodriguez knowingly
possessed marijuana with the intent to distribute it. See id.
Thus, the evidence was sufficient to support Rodriguez’s
conviction.
Turning to Rodriguez’s Booker argument, we are convinced that
the district court did commit error when it sentenced Rodriguez
under the pre-Booker, mandatory Guidelines regime. See United
States v. Walters, 418 F.3d 461, 463-64 (5th Cir. 2005). Conceding
this error, the government nevertheless contends that the error was
harmless. To prevail, the government must prove that such error
was harmless beyond a reasonable doubt. Id. at 464. The
government’s arguments do not establish that the outcome of the
district court proceedings was not affected by the imposition of
Rodriguez’s sentence under the mandatory Guidelines. See id. at
463-64; United States v. Pineiro, 410 F.3d 282, 285-86 (5th Cir.
2005) (Booker error). Additionally, the sentencing transcript
reveals that the district court did not provide a clear indication
of how consideration of the Guidelines as mandatory affected
Rodriguez’s sentence. As the government has not shown that the
sentencing judge would have imposed the same sentence under an
advisory sentencing scheme, see Pineiro, 410 F.3d at 285-86, it has
failed to prove harmlessness beyond a reasonable doubt. Although
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we affirm her conviction, we vacate Rodriguez’s sentence and remand
the case for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR
RESENTENCING.
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