United States v. Lozano-Mireles

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 6, 2006
Charles R. Fulbruge III
No. 03-41453 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO LOZANO-MIRELES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
No. 5:03-CR-452-2
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Alfredo Lozano-Mireles appeals his conviction of and sentence
for conspiracy to possess with intent to distribute in excess of
100 kilograms of marihuana and possession with intent to distribute
in excess of 100 kilograms of marihuana. He argues that the evi-
dence is insufficient to support his conviction because it does not
establish that he participated in a conspiracy or that he possessed
*
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opinion should not be published and is not precedent except under the limited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.
No. 03-41453
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any marihuana. He also contends that he should have received an
adjustment for playing a minimal or minor role in the offense.
Because Lozano-Mireles did not move for judgment of acquittal
on the basis that the evidence was insufficient to establish the
existence of a conspiracy, we review this issue only to determine
whether the record is “devoid of evidence pointing to guilt.” See
United States v. Herrera, 313 F.3d 882, 884-85 (5th Cir. 2002) (en
banc) (internal quotation and citation omitted). Evidence was pre-
sented at trial that Lozano-Mireles was arrested after U.S. Border
Patrol agents observed two scouts and eight men carrying backpacks
crossing through a fence in an area known for drug trafficking out-
side Laredo, Texas, and near the Mexican border. A sensor along a
known drug smuggling trail had previously been activated. Once the
agents announced their presence, the men carrying backpacks dropped
them to the ground, and all but one attempted to flee.
The one who did not flee instead dropped to the ground and was
found by the agents within a matter of seconds. He was identified
as Lozano-Mireles. Although Lozano-Mireles was not carrying any
drugs at the time of his arrest, he was found about 50 feet away
from several backpacks containing a total of 424 pounds of mari-
huana. Given these facts, the record is not devoid of evidence
pointing to Lozano-Mireles’s guilt on the conspiracy count.
Lozano-Mireles preserved his sufficiency argument regarding
the element of possession by raising it in the district court. Ac-
cordingly, we review it to determine whether any rational trier of
No. 03-41453
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fact could have found that the evidence established guilt beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318
(1979). The evidence must be examined as a whole and construed in
the light most favorable to the prosecution. United States v. Lom-
bardi, 138 F.3d 559, 560 (5th Cir. 1998). To establish possession
with intent to distribute marihuana, the government was required to
prove that Lozano-Mireles (1) knowingly (2) possessed marihuana
(3) with the intent to distribute it. See United States v. Diaz-
Carreon, 915 F.2d 951, 953 (5th Cir. 1990).
The evidence presented at trial was sufficient to show that
Lozano-Mireles knowingly possessed a backpack containing marihuana.
Additionally, his intent to distribute may be inferred from the
quantity of drugs involved. See United States v. Casilla, 20 F.3d
600, 603 (5th Cir. 1994). Because a rational trier of fact could
have found that the evidence established Lozano-Mireles’s guilt of
possession with intent to distribute marihuana beyond a reasonable
doubt, his conviction is affirmed. See Jackson, 443 U.S. at 318.
Lozano-Mireles also contends that, assuming arguendo that he
was involved in the offense, he was only a “mule” used to transport
a bag across the border, so the district court should have given
him a downward sentencing adjustment under U.S.S.G. § 3B1.2 based
on his role in the offense. Because this issue is raised for the
first time on appeal, we review only for plain error. United
States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005).
No. 03-41453
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To establish plain error, Lozano must show (1) error (2) that
is plain; (3) that affects his substantial rights; and (4) that af-
fects the fairness, integrity, or public reputation of judicial
proceedings. Id. Lozano has not met this standard. See United
States v. Pofahl, 990 F.2d 1456, 1485 (5th Cir. 1993); United
States v. Buenrostro, 868 F.2d 135, 137-38 (5th Cir. 1989).
AFFIRMED.