United States v. Jimenez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-41152
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GUADALUPE CRISTINO JIMENEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(M-96-CR-104-1)
_________________________________________________________________
November 7, 1997
Before REYNALDO G. GARZA, KING, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-appellant Guadalupe Cristino Jimenez was convicted

following a jury trial of conspiracy to possess with intent to

distribute more than 100 but less than 1000 kilograms of

marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),

and 846 and of possession with intent to distribute more than 100

but less than 1000 kilograms of marijuana in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. Jimenez was

*
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this opinion should not be published and is not precedent except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 to a term of imprisonment of fifty-one months on each

count, the terms to run concurrently, and to be followed by

concurrent four-year terms of supervised release. Jimenez

appeals on two grounds: (1) that the evidence presented at trial

was insufficient for the jury to find him guilty of each count,

and (2) that the district court erred in declining to reduce

Jimenez’s offense level for acceptance of responsibility. We

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The evidence presented at trial showed that Jimenez was

scheduled to drive a tractor-trailer rig (the “Rig”) fully loaded

with produce from Texas to Illinois on May 6, 1996. Jimenez

signed bills of lading showing that he was transporting a full

load of cantaloupes, onions, and cabbages.

Having previously picked up 336 cartons of cantaloupes from

the Progreso Produce company, Jimenez proceeded to Holden

Wallace, Inc., a produce house in Donna, Texas, where the

remainder of the Rig’s trailer was filled with cartons of cabbage

and cartons and sacks of onions. Jimenez left Holden Wallace at

approximately 1:00 a.m. on the morning of May 7, 1996.

The Texas Department of Public Safety, having apparently

obtained information indicating that the Rig was transporting

narcotics, placed the Rig under surveillance. At 9:00 a.m.,

narcotics agents observed the Rig parked at the Thermo-King

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repair shop, ostensibly for the purpose of having its “reefer”--

the refrigeration unit on the trailer--repaired. Personnel at

Holden Wallace had checked the Rig’s reefer before filling its

trailer and found it to be in proper working order. Jimenez did

not contact the produce house to inform it that he had stopped

for repairs.

Narcotics agents observed a blue pickup truck that was also

under investigation pull into Thermo-King’s outside parking lot.

The pick-up was driven by Nora Alicia Dominguez. Dominguez

subsequently left in the blue pickup truck with Jimenez in the

passenger seat and drove to the Tex Mart convenience store.

Dominguez parked the truck in front of the store and made a

telephone call at a pay phone in the parking lot. Shortly

thereafter, a black Ford Mustang occupied by three Hispanic males

pulled into the Tex Mart parking lot. Dominguez and Jimenez

spoke with the occupants of the Mustang, and then got back in the

blue pickup truck. Both vehicles headed south to the Casa del

Taco restaurant in McAllen. At approximately 11:00 a.m.,

Dominguez, Jimenez, and the occupants of the Mustang entered the

restaurant. At approximately 12:00 p.m., they departed.

Dominguez and Jimenez drove back to Thermo-King in the pickup.

Jimenez left Thermo-King in the Rig, followed by Dominguez in the

pickup. Jimenez and Dominguez drove the two vehicles to the

Silver Spur truck stop in Pharr, Texas. Jimenez exited the Rig

and rejoined Dominguez in the blue pickup truck. Dominguez and

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Jimenez left the truck stop at around 12:30 p.m. and returned

approximately four hours later. No one opened the doors of the

Rig’s trailer during this four hour period.

Jimenez then drove the Rig to a warehouse in Pharr and

backed it into a rental stall, where the Rig remained for

approximately one hour. Narcotics agents observed Jimenez

talking to Dominguez in the parking lot outside the warehouse

compound. Later, narcotics agents discovered two empty

cantaloupe boxes in the stall that the Rig had occupied. Rescimo

De La Pina, the manager of the warehouse, testified that the

rental stall used by the Rig was not currently rented to anyone

and that the most recent tenant, an individual named Hinojosa,

vacated the space in February 1996 and never returned his keys to

the stall and the main gate.

Jimenez left the warehouse in the Rig heading north toward

the United States Border Patrol checkpoint at Falfurrias, Texas.

Gilbert Silvas, the Border Patrol agent on duty, received word

that the Rig was the subject of a narcotics investigation. State

narcotics agents supplied Silvas with the Rig’s license plate

number and the name of the driver.

When the vehicle was stopped at the checkpoint, Silvas

approached Jimenez. Silvas found Jimenez to be “a little

nervous” and observed that Jimenez had difficulty retrieving his

resident alien card from his wallet because he was shaking badly.

Silvas verified that Jimenez’s identification matched the name

4
given him by narcotics agents and asked Jimenez if he could

inspect the Rig. Jimenez consented and pulled the Rig into a

secondary area, where he proceeded to exit the Rig and open the

doors of its trailer without any reluctance.

A Border Patrol agent placed a drug-sniffing dog in the

trailer, and the dog alerted that the trailer contained illegal

drugs. Border Patrol agents crawled into the trailer and found

cellophane-wrapped bundles near the bottom and toward the middle

of the trailer. The parties stipulated that the bundles

contained a total of 175 kilograms of marijuana.

Border Patrol agents placed Jimenez under arrest and read

him his Miranda rights. The agents allowed Jimenez to drive the

Rig to a warehouse where it was unloaded. When the Rig’s load of

produce was eventually delivered to its destination in Illinois,

it contained approximately 2,500 pounds less produce than the

bills of lading for the shipment indicated.

Jose Ortiz, a state narcotics investigator, interviewed

Jimenez later in the evening. Jimenez told Ortiz that he had

loaded the Rig with produce and then taken it to the Silver Spur

to have some work done on it. Jimenez stated that he ate lunch

with Dominguez, but became silent when asked about the three men

in the black Mustang. Jimenez claimed that he returned to the

Silver Spur after lunch and headed north in the Rig. Jimenez

claimed that a man approached him about transporting controlled

substances in the Rig. Narcotics agents conducting surveillance

5
of the Silver Spur observed no such encounter. Jimenez also

acknowledged that, prior to his arrest, he believed that he was

carrying illegal drugs in the Rig, but did not know what type of

drugs.

Jimenez made motions for acquittal after the government

rested and at the conclusion of the trial, and the district court

denied both motions. The jury returned a verdict of guilty as to

both the charges of conspiracy to possess with intent to

distribute more than 100 but less than 1000 kilograms of

marijuana and of possession with intent to distribute more than

100 but less than 1000 kilograms of marijuana.

The presentence investigation report (PSR) recommended that

Jimenez not receive a reduction in his offense level for

acceptance of responsibility because, during a presentence

interview, he claimed that he was unaware of the presence of the

marijuana in the trailer and was merely following the

instructions of the Rig’s owner. He also claimed during the

interview that he went to the warehouse in Pharr to get some

tires changed on the Rig. At the sentencing hearing, Jimenez

objected to the PSR’s recommendation that he not receive a

downward departure for acceptance of responsibility. He based

his objection solely on the ground that he had debriefed with the

government regarding his involvement in the offenses of which he

was convicted.

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 II. DISCUSSION

Jimenez contends on appeal that insufficient evidence

existed to convict him of either possession with intent to

distribute or conspiracy to possess and distribute the marijuana

found in the Rig. Jimenez also argues that he is entitled to a

reduction in his offense level for acceptance of responsibility.

Both of Jimenez’s contentions lack merit.

A. Sufficiency of the Evidence

1. Standard of review

“We review sufficiency-of-the-evidence challenges to

determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”

United States v. Alix, 86 F.3d 429, 435 (1996). In conducting

our review, we are mindful that the jury is “‘free to choose

among all reasonable constructions of the evidence.’” United

States v. Chaney, 964 F.2d 437, 448 (5th Cir. 1992) (quoting

United States v. Berisha, 925 F.2d 791, 795 (5th Cir. 1991)).

Therefore, we construe all reasonable inferences from the

evidence in favor of the jury verdict. United States v. Garza,

990 F.2d 171, 174 (5th Cir. 1993).

2. Possession with intent to distribute

In a prosecution for possession with intent to distribute,

the government must prove three elements beyond a reasonable

doubt: “(1) knowing (2) possession of a controlled substance (3)

7
with intent to distribute it.” United States v. Gonzales, 121

F.3d 928, 936 (5th Cir. 1997). Jimenez contends that the

government did not prove beyond a reasonable doubt that he knew

that the trailer of the Rig contained marijuana. This argument

lacks merit.

“[K]nowledge can be inferred from control over the vehicle

in which the drugs are hidden ‘if there exists other

circumstantial evidence that is suspicious in nature or

demonstrates guilty knowledge.’" Garza, 990 F.2d at 174 (quoting

United States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.

1990)). "Additional evidence of guilt may come from nervousness,

inconsistent statements, implausible stories, or possession of

large amounts of cash by the defendants." United States v.

Pennington, 20 F.3d 593, 598 (5th Cir. 1994).

Jimenez was found in possession of a vehicle carrying 175

kilograms of marijuana, and additional evidence indicated that

Jimenez had knowledge that marijuana was present in the truck.

First, Jimenez admitted that he believed that the Rig contained

illegal drugs, but that he was unsure of the type of drugs.

Second, he stated that a man approached him at the Silver Spur

about transporting drugs, a story rendered implausible by the

narcotics agents’ surveillance reports. Third, the jury had

before it evidence that Jimenez seemed nervous and his hands were

shaking at the time that he was stopped at the border checkpoint.

Additionally, the jury could have inferred Jimenez’s intent to

8
distribute the marijuana from his possession of such a large

amount of contraband. See United States v. Lopez, 979 F.2d 1024,

1031 (5th Cir. 1992).

Viewing the evidence in the light most favorable to the

verdict, we conclude that a reasonable jury could have found

Jimenez guilty of possession with intent to distribute marijuana.

3. Conspiracy

“A conviction for a narcotics conspiracy requires proof

beyond a reasonable doubt (1) that two or more people agreed to

violate the narcotics laws, (2) that each alleged conspirator

knew of the conspiracy and intended to join it, and (3) that each

alleged conspirator participated in the conspiracy.” Alix, 86

F.3d at 436. Jimenez argues that there was a complete lack of

evidence of an agreement between Jimenez and any other person to

violate federal drug laws. This argument fails.

In proving up a charge of conspiracy, the government need

not prove the existence of an explicit agreement to conspire; a

tacit agreement is sufficient. See United States v. Greenwood,

974 F.2d 1449, 1457 (5th Cir. 1992). Circumstantial evidence may

establish the existence of such an agreement. See United States

v. Tencer, 107 F.3d 1120, 1132 (5th Cir. 1997). When the

government attempts to prove the existence of a conspiracy by

circumstantial evidence, it must clearly establish each link in

the inferential chain, and cannot merely pile inference upon

9
inference in order to establish the charge. United States v.

Mackay, 33 F.3d 489, 493 (5th Cir. 1994); United States v.

Galvan, 693 F.2d 417, 419 (5th Cir. 1982). “A conspiracy

conviction does not depend on the identification of the

co-conspirators. The co-conspirators need not be identified as

long as evidence supports ‘the proposition that such a

co-conspirator did exist and that the defendant did conspire with

him.’” United States v. Moree, 897 F.2d 1329, 1332 (5th Cir.

1990) (quoting United States v. Pruett, 551 F.2d 1365, 1369 (5th

Cir.1977)).

The totality of circumstances established by the evidence in

this case supports the jury’s conclusion that Jimenez was

involved in a conspiracy to violate the drug laws. The sheer

volume of marijuana involved, coupled with the time constraints

surrounding its being loaded into the Rig, indicates that Jimenez

was not the only person involved in the drug trafficking scheme.

See United States v. Price, 869 F.2d 801, 804-05 (5th Cir. 1989)

(concluding that sufficient evidence existed to convict the

defendant of conspiracy to possess with intent to distribute five

kilograms of cocaine and noting that “the sheer volume of the

cocaine involved indicates that the defendant could not have

loaded it alone”). The jury could have concluded from the

evidence that the marijuana was placed in the trailer at the

warehouse in Pharr, and therefore that Jimenez did not load the

contraband by himself. First, the evidence indicates that the

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Rig contained no marijuana when it left the Wallace Holden

produce house at 1:00 a.m. on May 7. Second, the warehouse stall

where narcotics agents observed the Rig from 4:30 p.m. to 5:30

p.m. on May 7 was unrented, which indicates that Jimenez was

trespassing on the premises and had no legitimate reason to be

there. Third, narcotics agents found cantaloupe boxes inside the

stall. This evidence would allow a reasonable juror to conclude

that the marijuana was loaded into the Rig at the warehouse. It

is simply implausible to believe that, in one hour’s time,

Jimenez acting alone could have unloaded enough produce from the

Rig to hide 175 kilograms of marijuana near the bottom layer of

boxes in the middle of the trailer and then reload boxes on top

of it. Such a scenario is rendered even more improbable by the

fact that, during a portion of the hour that the Rig was parked

at the warehouse, narcotics agents observed Jimenez conversing

with Dominguez in a parking lot outside the warehouse compound.

Additionally, Jimenez told narcotics officers that an

unidentified man approached him outside the Silver Spur truck

stop and offered him money to transport illegal drugs in the Rig.

The fact that this statement is in some degree inconsistent with

the surveillance reports of the narcotics agents does not

indicate that it cannot serve as evidence of a conspiracy. The

jury was entitled to credit the portion of Jimenez’s statement

indicating that a prospective co-conspirator offered him money to

carry illegal drugs in the Rig and reject the portion of his

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statement indicating that the offer was made on May 7 outside the

Silver Spur truck stop. See United States v. Pruneda-Gonzalez,

953 F.2d 190, 196 n.9 (5th Cir. 1992) (observing that the jury

“is afforded the latitude to ‘choose to believe part of what a

witness says without believing all of that witness’s testimony’”

(quoting United States v. Merida, 765 F.2d 1205, 1220 (5th Cir.

1985))).

Moreover, after surveillance of Jimenez and the Rig began at

9:00 a.m. on May 7, narcotics agents observed Jimenez in the

company of Dominguez and three unidentified men. Additionally,

narcotics agents observed Dominguez near the warehouse during the

time period when, in all likelihood, the marijuana was being

loaded into the Rig. Although an individual’s mere presence at

the scene of criminal activity is insufficient to establish that

the individual is a co-conspirator in the activity, such presence

is a valid factor for the jury to consider along with other

evidence in determining whether a conspiracy existed. See United

States v. Martinez-Moncivais, 14 F.3d 1030, 1034 (5th Cir. 1994)

(concluding that an individual’s presence at the center of the

conspiracy’s criminal activity on more than an isolated or random

occasion may be a valid factor to consider in determining whether

the individual is engaged in criminal activity).

In light of the foregoing, the jury could have concluded,

without simply piling inference upon inference, that Jimenez was

involved in a criminal conspiracy.

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 B. Acceptance of Responsibility

Jimenez argues that the trial court erred in refusing to

reduce his offense level by two points for the acceptance of

responsibility because he cooperated with the government with

respect to his involvement and was debriefed. He also argues

that he acknowledged responsibility for his offense at his

sentencing.1 We disagree.

A defendant who “clearly demonstrates acceptance of

responsibility for his offense” is entitled to a two-level

decrease of his offense level. U.S. SENTENCING GUIDELINES MANUAL

§ 3E1.1(a) (1995). “This adjustment is not intended to apply to

a defendant who puts the government to its burden of proof at

trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.”

Id. § 3E1.1 cmt. 2. In “rare situations” in which the defendant

exercises his constitutional right to go to trial to preserve

issues that do not relate to his factual guilt, he may be

1
Jimenez also argues that the fact that he was convicted
after a jury trial is irrelevant to his entitlement to a downward
departure for acceptance of responsibility because it is
constitutionally impermissible to punish a citizen for asserting
his constitutional right to a jury trial. This argument is
specious. To accept it would be to conclude that the plea
bargaining is an unconstitutional practice because it provides
criminal defendants with an incentive not to exercise their
constitutional right to a jury trial. This is not the case. See
Town of Newton v. Rumery, 480 U.S. 386, 393 (1987) (“[I]t is well
settled that plea bargaining does not violate the Constitution
even though a guilty plea waives important constitutional
rights.”).

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entitled to the adjustment. See id. This court’s review of the

district court’s determination regarding the applicability of

this adjustment “is more deferential than the clearly erroneous

standard.” United States v. Burian, 19 F.3d 188, 192 (5th Cir.

1994).

Jimenez did not admit to his involvement in the charged

offenses prior to his trial. After the trial, Jimenez apparently

provided the government with some information, but he did not

give a complete debriefing until the day before his sentencing.

Jimenez has not argued that he proceeded to trial in order to

preserve a constitutional issue that was unrelated to his factual

guilt. To say the least, Jimenez has not demonstrated that the

district court clearly erred in denying him an adjustment of his

offense level based on his acceptance of responsibility.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

conviction and sentence of the district court.

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