United States v. Lozano-Mireles
209 F. App'x 367
December 6, 2006 · Docket 03-41453
Headnotes
Generated summaries- Headnote 1
The court found that Lozano‑Mireles, though not found with drugs, was identified 50 feet from backpacks containing 424 pounds of marijuana, so the record was not devoid of evidence of his participation in the conspiracy.
- Headnote 2
The court considered the evidence in the light most favorable to the prosecution and applied the Jackson v. Virginia framework to determine sufficiency of the record.
- Headnote 3
The Fifth Circuit applied the Diaz‑Carreon elements to find that Lozano‑Mireles knowingly possessed the marijuana and that intent to distribute could be inferred from the circumstances.
- Headnote 4
The court held that the 424‑pound haul was sufficiently large to support an inference that Lozano‑Mireles intended to distribute the marijuana.
- Headnote 5
Lozano‑Mireles argued for a downward adjustment based on a minimal “mule” role; because the issue was newly raised, the Fifth Circuit limited review to the plain‑error standard.
- Headnote 6
The court applied the four‑prong test from Pofahl and Buenrostro and concluded that Lozano‑Mireles did not meet the plain‑error threshold regarding his § 3B1.2 request.
- Headnote 7
The court found that Lozano‑Mireles was identified near backpacks holding 424 lb of marijuana, providing at least some evidence of his participation, so the conspiracy conviction was upheld.
- Headnote 8
The appellate court examined the record as a whole, determined that a rational jury could infer knowledge and intent, and therefore affirmed the convictions.
- Headnote 9
The court held that the government satisfied these three elements by showing Lozano‑Mireles knowingly possessed a marijuana‑filled backpack and that intent to distribute could be inferred from the quantity involved.
- Headnote 10
Because the seized marijuana weighed over 400 lb, the court concluded that such a large amount supported an inference of distribution intent, satisfying the third element of the PID crime.
- Headnote 11
The court found that Lozano‑Mireles failed to demonstrate any of the four plain‑error prongs regarding the denied § 3B1.2 downward adjustment, so the district court’s decision was affirmed.
- Headnote 12
Lozano‑Mireles was identified by Border Patrol agents at the scene and was found within 50 feet of backpacks containing 424 lb of marijuana, although he was not carrying the drugs himself.
- Headnote 13
The trial record, viewed favorably to the government, showed Lozano‑Mireles’s proximity to the drug caches and the circumstances of his arrest, allowing a rational juror to infer participation in the conspiracy.
- Headnote 14
The prosecution demonstrated that Lozano‑Mireles knowingly possessed a backpack of marijuana and, given the quantity, intended to distribute it.
- Headnote 15
Lozano‑Mireles was found near backpacks holding 424 lb of marijuana; such a quantity is far beyond personal consumption, allowing a rational trier to infer distribution intent.
- Headnote 16
Lozano‑Mireles argued that, as a minimal “mule,” he deserved a downward adjustment, but because this claim was raised for the first time on appeal, the court applied the plain‑error standard and found the error insufficient.
Opinion
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 evidence is insufficient to support his conviction because it does not establish that he participated in a conspiracy or that he possessed 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 presented 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 outside 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 marihuana. 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. Accordingly, we review it to determine whether any rational trier of fact could have found that the evidence established guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be examined as a whole and construed in the light most favorable to the prosecution. United States v. Lombardi 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, 99 S.Ct. 2781.
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, - U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005).
To establish plain error, Lozano must show (1) error (2) that is plain; (3) that affects his substantial rights; and (4) that affects 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.
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.