IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________
No. 97-51071
________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO CANO-GUEL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
_________________________________________________________________
February 12, 1999
Before HIGGINBOTHAM, BENAVIDES, and DENNIS Circuit Judges.
BENAVIDES, Circuit Judge:
Francisco Cano-Guel (“Cano-Guel”) appeals from his criminal
conviction and sentence for importation of and possession with
intent to distribute marijuana. Cano-Guel contends that the
evidence was insufficient to support his two count conviction,
that the district court committed plain error in failing to
define “knowingly” in its jury charge, and that the district
court erred in refusing to reduce his offense level for
acceptance of responsibility. For the reasons set forth below,
we AFFIRM both Cano-Guel’s conviction and sentence.
I. Background
A.
On June 21, 1997, Cano-Guel was arrested at the El Paso,
Texas, Port of Entry after U.S. Customs agents discovered
marijuana concealed in the Buick he was driving into the United
States. Following his arrest, a two count indictment issued
charging Cano-Guel with importation of marijuana (Count One) and
possession of marijuana with intent to distribute (Count Two).
He entered into a plea agreement with the Government. In
exchange for his plea of guilty to Count One, the Government
agreed (1) to move for dismissal of Count Two and (2) to not
oppose a three-level reduction in offense level for acceptance of
responsibility. At the October 16 rearraignment hearing,
however, the district court refused to accept Cano-Guel’s plea of
guilty and, instead, set his case for trial on October 20, 1997.
Following a two day trial, the jury found Cano-Guel guilty
on both counts. On December 9, 1997, the district court
sentenced him to concurrent 21-month terms of imprisonment.
B.
At approximately 9:00 a.m., on Saturday, June 21, 1997,
Cano-Guel entered the United States from the Republic of Mexico
through the Bridge of Americas Port of Entry in El Paso, Texas.
He was the driver and sole occupant of a 1985 Buick Century,
bearing Mexican registration. At primary inspection, he showed
Customs Inspector Auden Ramos his resident alien card. In
2
response to questioning, Cano-Guel stated that he had nothing to
declare and that he was going to El Paso “to buy groceries” or
“to buy a few things.”1 He also told Inspector Ramos that the
car belonged to a friend. Cano-Guel did not appear to be nervous
and the car did not smell of contraband. Inspector Ramos,
however, referred Cano-Guel to secondary inspection because he
noticed that the glove compartment did not contain registration
or insurance papers, that the key ring held only one key besides
the ignition key, and that the car contained no personal
belongings or trash.
At secondary inspection, Cano-Guel told Customs Inspector
Thomas Klukas that he had borrowed the Buick from his mechanic
because his own car was not running well. A canine alerted to
the presence of marijuana and officers discovered bundles of the
drug hidden inside the dashboard as well as the rear doors.
Approximately 59.7 pounds of marijuana were recovered from the
Buick. The marijuana could not be seen by a person sitting in
the car and the customs inspectors testified that they could not
smell the drug until after the packages of marijuana were opened.
Inspector Klukas escorted Cano-Guel to the head house where
he was frisked for weapons and contraband. Customs Special Agent
John Alpers interviewed Cano-Guel after advising him of his
1
The exchange between Cano-Guel and Ramos took place in
Spanish.
3
Miranda rights.2 Cano-Guel told Agent Alpers that he had been
going to El Paso to see a doctor. Cano-Guel initially could not
remember the doctor’s name. After some thought, he recalled that
it was “Dr. Negrete.” Cano-Guel told Alpers that Dr. Negrete’s
office was on Mesa Street near the hospital but that he did not
know the precise address. He said that Dr. Negrete had performed
hernia surgery on him four years earlier and had told him to
return if he became ill. Cano-Guel admitted that he did not have
an appointment with Dr. Negrete, but said that he was on his way
to the doctor’s office to make an appointment. Agent Alpers
commented that Cano-Guel’s report about his visit to the doctor
did not seem truthful to which Cano-Guel responded that he was a
Christian and did not lie. Cano-Guel told Agent Alpers that the
Buick belonged to his friend Javier, whom he had known since
Javier was a child, and that he had picked up the car that
morning from Javier’s garage. Cano-Guel, however, did not know
Javier’s last name. Cano-Guel also told Alpers that he did not
currently own a car.
Cano-Guel later testified at trial that he lived in Juarez
where he cared for his elderly father. Cano-Guel explained that
Javier, the person who loaned him the car, was about 30 years old
and that Cano-Guel had met him about 15 years earlier when Cano-
2
The interview was conducted in Spanish. Agent Alpers
testified that his Spanish is “fairly good” and that he was
assisted by interpreter Carlos Macias.
4
Guel was coaching a football team. According to Cano-Guel,
Javier owns a mechanic’s shop in Juarez. Cano-Guel testified
that he did not know Javier’s last name or the location of his
shop.
Cano-Guel additionally testified that, on the day of his
arrest, he was in great pain from his hernia. He went to his
brother Jesus’ house to borrow Jesus’ truck so that he might go
to El Paso and make an appointment with Dr. Negrete.3 Cano-Guel
could not borrow Jesus’ truck because it was not running well.4
According to Cano-Guel, he sat down on the sidewalk, dejected
because he was in too much pain to walk to the bus stop in order
to take a bus to El Paso. While sitting there, Javier drove up.
When he learned of Cano-Guel’s problem, Javier offered to loan
him a car and told Cano-Guel to wait. Javier returned about 25
minutes later driving the Buick. Cano-Guel explained that
Javier, himself, could not take Cano-Guel to Dr. Negrete’s office
because Javier did not have a crossing card. Cano-Guel denied
knowing that the Buick contained marijuana, but did admit that
the car had a strange odor as if “it was coming from the
outdoors, from the land, from agriculture.”
3
Cano-Guel testified that he has had recurring hernia
problems and that Dr. Negrete operated on him three times in
1992.
4
Cano-Guel’s brother and sister-in-law also testified that
he had tried to borrow their truck to go to the doctor on the day
of his arrest, but that they had refused because the truck had
mechanical problems.
5
On cross-examination, Cano-Guel agreed that he had told
Inspector Ramos that he was coming to the United States to go
shopping. He also agreed that he had told Inspector Klukas that
the Buick belonged to a mechanic in Juarez and that Cano-Guel had
left his vehicle with a mechanic because it was not running well.
He insisted, however, that he had not intended to convey to
Inspector Klukas that he had left his own vehicle with the person
who loaned him the Buick. Cano-Guel explained that he had told
Inspector Klukas that his car was at a mechanic’s because he and
his siblings considered their possessions common property and
because his sister-in-law had told him that his brother’s truck
was going to be taken to the mechanic that day. Cano-Guel
admitted that he had not seen a doctor about his hernia until the
Friday before trial. He additionally told the court that he did
not think that anyone had followed the Buick and that he had no
idea how the owners of the marijuana planned to remove it from
the Buick once it crossed into the United States.
II. DISCUSSION
A.
Cano-Guel argues that the evidence is insufficient to
support his conviction because it fails to establish that he knew
that marijuana was hidden in the Buick, an element necessary to
prove both the importation and the possession charges.
The narrow scope of review for sufficiency of the evidence
6
following a conviction is well established. We have explained
that, in evaluating the sufficiency of the evidence on appeal,
the reviewing court must consider the evidence in the light most
favorable to the Government, drawing all reasonable inferences in
support of the jury's verdict. See United States v. Lopez, 74
F.3d 575, 577 (5th Cir. 1996). The evidence is sufficient if a
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); United States v.
Gaytan, 74 F.3d 545, 555 (5th Cir. 1996). The evidence need not
exclude every reasonable hypothesis of innocence, and the jury is
free to choose among reasonable constructions of the evidence.
See Lopez, 74 F.3d at 577. That being said, we have cautioned
that if the evidence gives “equal or nearly equal circumstantial
support” to a theory of guilt and a theory of innocence, reversal
is required. United States v. Sanchez, 961 F.2d 1169, 1173 (5th
Cir. 1992).
A conviction for the offense of possession of marijuana with
intent to distribute requires proof that the defendant
(1) knowingly (2) possessed marijuana (3) with intent to
distribute it. See Lopez, 42 F.3d at 577. Importation of
marijuana, in contrast, requires proof that: (1) the defendant
played a role in bringing a quantity of marijuana into the United
States from a place outside the United States; (2) the defendant
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knew the substance was marijuana; and (3) the defendant knew the
substance would enter the United States. See United States v.
Casilla, 20 F.3d 600, 603 (5th Cir. 1994). To establish either
crime, “the government must adduce sufficient evidence of guilty
knowledge.” Lopez, 74 F.3d at 577; see also United States v.
Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990).
It is rare that direct evidence is available to prove the
knowledge element for possession or importation of drugs. See
Lopez, 74 F.3d at 577; United States v. Garza, 990 F.2d 171, 174
(5th Cir. 1993). Although knowledge may sometimes be inferred
solely from control of a vehicle containing drugs, when the drugs
are secreted in hidden compartments, as in the present case, the
Government must produce additional “circumstantial evidence that
is suspicious in nature or demonstrates guilty knowledge.”
United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.1995).
This requirement stems from the recognition that, in hidden
compartment cases, there "is at least a fair assumption that a
third party might have concealed the controlled substances in the
vehicle with the intent to use the unwitting defendant as the
carrier in a smuggling enterprise.” Diaz-Carreon, 915 F.2d at
954. In the present case, the Government points to Cano-Guel’s
conflicting statements to customs officials and his implausible
story as circumstantial proof of his guilty knowledge.
According to the Government, Cano-Guel made several
8
conflicting statements to customs officials at the El Paso port
of entry. The conflicting statements included (1) telling
Inspector Ramos that he was going to the United States to buy
“groceries” or a few things” and telling Agent Alpers that he was
going to the doctor, (2) stating that the Buick belonged to a
friend and later claiming that it belonged to his mechanic,
(3) telling Inspector Klukas that his car was in the shop and
revealing to other agents that he did not own a car, (4)
informing Agent Alpers that he had picked up the Buick at
Javier’s garage and testifying at trial that Javier drove the car
to him.
Moreover, the Government asserts that Cano-Guel provided
customs officials an implausible explanation of his motive for
traveling into the United States. Cano-Guel claimed that he was
in a great deal of pain and entered the United States so that he
might see Dr. Negrete. Yet, testimony at trial revealed that
Cano-Guel never complained of being ill, either at the checkpoint
or while being processed in the County Detention Facility. In
fact, Cano-Guel admitted that he had not seen a doctor concerning
his hernia until the Friday before trial--some four months after
the date he attempted to enter the country.
In addition to the implausible explanation of Cano-Guel’s
motive to travel argued by the Government, we find equally
implausible Cano-Guel’s account of how he came to possess the
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Buick. At trial, Cano-Guel testified that when he failed to
borrow his brother’s truck, he sat on the sidewalk in despair
until Javier, his mechanic-friend, came by and offered to loan
him a car. According to Cano-Guel, he had known Javier for
fifteen years yet knew neither his last name nor the location of
his mechanic’s shop.
On the basis of these implausible stories and the apparent
inconsistencies in statements made by Cano-Guel to customs
agents, we find the evidence sufficient to support an inference
by the jury that Cano-Guel knew that the Buick contained
marijuana. Although we are mindful that “[n]o single piece of
circumstantial evidence need be conclusive when considered in
isolation,” United States v. Miller, 146 F.3d 274, 281 (5th
Circ. 1998), we recognize that inconsistent statements and
implausible explanations are types of behavior that can
reasonably be relied upon as circumstantial evidence of guilty
knowledge. See Diaz-Carreon, 915 F.2d at 955 (discussing
inconsistent statements of appellant); Casilla, 20 F.3d at 606
(noting implausible explanation of events offered by appellant).
The jury thus drew reasonable and rational inferences from the
facts in this case and returned a verdict of guilty. We see no
reason to disturb that determination.
B.
Cano-Guel also argues that the district court erred by
10
failing to include a definition of the term “knowingly” in its
instruction to the jury. In particular, he complains that the
jury was not instructed that his exercise of control over the
Buick, in and of itself, was inadequate to establish that he
knowingly possessed the hidden drugs. Because Cano-Guel did not
ask the district court for such an instruction, we review the
district court’s charge to the jury for plain error. See United
States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994).
Under the plain error standard, an appellant must show:
(1) that there was error; (2) that it was clear and obvious; and
(3) that it affected the appellant’s substantial rights. See
United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997), cert.
denied, --- U.S. ---, 118 S.Ct. 857 (1998); see also United
States v. Olano, 507 U.S. 725, 730-36, 113 S.Ct. 1770, 1775-79
(1993) (requiring defendant, in most cases, to make a specific
showing of prejudice to satisfy the substantial rights prong).
Even when these criteria are satisfied, a court should exercise
its discretion to reverse only if the forfeited error “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Olanu, 507 U.S. at 732, 113 S.Ct. at 1777.
We have held that the term “knowingly” is given its common
meaning in the statutes prohibiting the possession of controlled
substances and that no further jury instruction is required if
the jury is correctly instructed as to the substantive offenses.
11
See United States v. Sanchez-Soleto, 8 F.3d 202, 212 (5th Cir.
1993). Here, the district court’s charge to the jury tracked the
Fifth Circuit pattern jury instruction on actual and constructive
possession. See Fifth Circuit Pattern Jury Instruction 1.31
(Criminal Cases) (1990). Moreover, the district court instructed
the jury on the elements of the two charged offenses.
Accordingly, we hold that the district court did not commit
error, plain or otherwise, in its instruction to the jury.
C.
Cano-Guel further argues that the district court erred by
failing (1) to accept his guilty plea, which he characterizes as
an Alford5 or nolo contendere plea, and (2) to grant him a three-
level downward departure for acceptance of responsibility. Cano-
Guel incorrectly characterizes his proffered plea. Neither the
written plea agreement nor the transcript of the rearraignment
hearing suggests that Cano-Guel and the Government negotiated an
Alford or a nolo plea.
A district court may not accept a guilty plea unless it is
supported by a sufficient factual basis. See United States v.
Carter, 117 F.3d 262, 264 (5th Cir. 1997); see also F.R.Crim P.
11(f). The facts supporting the plea must “appear in the record
and must be sufficiently specific to allow the court to determine
if the defendant’s conduct was within the ambit of that defined
5
North Carolina v. Alford, 400 U.S. 25, 37 (1970).
12
as criminal.” Carter, 117 F.3d at 264. We review for clear
error the district court’s decision whether to accept a plea.
Id.
Knowledge is an element of both the importation and
possession offenses. See Casilla, 20 F.3d at 603. Because Cano-
Guel insisted that he did not know that the Buick contained
marijuana, the district court did not clearly err by determining
that his guilt or innocence should be determined by a jury.
Furthermore, Cano-Guel’s contention that he would be
entitled to a mandatory downward departure for acceptance of
responsibility had Judge Hudspeth accepted his Alford plea lacks
merit.6 The entering of a plea (even an unequivocal guilty plea)
does not automatically constitute acceptance of responsibility.
See U.S. Sentencing Guidelines Manual § 3E1.1 application note 3
("A defendant who enters a guilty plea is not entitled to an
adjustment under this section as a matter of right."); United
States v. Harlan, 35 F.3d 176, 181 (5th Cir. 1994) (discussing
acceptance of responsibility departure in context of Alford
plea). A defendant must affirmatively demonstrate to the
district court that he is entitled to the downward departure.
Because trial courts are in a "unique position to evaluate
whether the defendant has demonstrated acceptance of
6
Under the sentencing guidelines, a district court may
decrease a defendant’s offense level if it finds that “the
defendant clearly demonstrates acceptance of responsibility for
his offense.” U.S. Sentencing Guidelines Manual § 3E1.1.
13
responsibility," Frank v. Blackburn, 646 F.2d 873, 885 (5th Cir.
1980), a district court’s finding on acceptance of responsibility
is examined “for clear error but under a standard of review even
more deferential than a pure ‘clearly erroneous’ standard.”
United States v. Gonzales, 19 F.3d 982, 983 (5th Cir. 1994)
(internal citation and quotation omitted).
Here, the district court denied the reduction for acceptance
of responsibility with the comment that Cano-Guel’s report of
smelling an odor in the car was “very watered down” in his
testimony before the jury and that it had no doubt that Cano-Guel
“was simply employed for a fee to cross the marijuana.” Because
“[a] defendant’s refusal to acknowledge essential elements of an
offense is incongruous with the guideline’s commentary that
truthful admission of the conduct comprising an offense is
relevant in determining whether a defendant qualifies [for a
reduction for acceptance of responsibility],” Harlan, 35 F.3d at
181, Cano-Guel has failed to show that the district court erred
in its determination not to grant a § 3E1.1 departure.
CONCLUSION
Cano-Guel raises three issues on appeal none of which
warrant reversal. We, therefore, affirm both Cano-Guel’s
conviction and sentence.
AFFIRMED.
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