Case: 13-40994 Document: 00512863647 Page: 1 Date Filed: 12/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-40994
Fifth Circuit
FILED
Summary Calendar December 9, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ALEXIS ESTEVEZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 7:03-918-1
USDC No. 7:03-588-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Alexis Estevez was convicted by a jury of possession with intent to
distribute approximately 671 kilograms of marijuana and for failing to appear
to stand trial on that charge. The district court sentenced Estevez to 110
months in prison on the marijuana count and 20 months in prison on the
failure-to-appear count, with the two sentences to run consecutively for a total
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-40994
of 130 months in prison. On appeal, Estevez raises no issues concerning the
conviction or sentence for failure to appear.
Estevez filed a motion to replace appointed counsel after all briefing was
complete. Appointed counsel may be relieved “upon a showing that there is a
conflict of interest or other most pressing circumstances or that the interests
of justice otherwise require relief of counsel.” 5th Cir. Plan Under the Crim.
Justice Act, § 5(B); see also 18 U.S.C. § 3006A(c). Estevez has alleged nothing
that rises to this level. Estevez’s motion to relieve appointed counsel and
appoint new counsel is DENIED.
Estevez argues that the district court erred by denying his motions for
acquittal because no rational juror could have found him guilty beyond a
reasonable doubt of possession with intent to distribute marijuana. “When
reviewing the sufficiency of the evidence, we consider whether “any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th
Cir.) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)), cert.
denied, 2014 WL 2919463 (Oct. 6, 2014) (No. 13-10737). The essential
elements of the offense of possession with intent to distribute a controlled
substance are “(1) knowledge, (2) possession, and (3) intent to distribute the
controlled substance.” United States v. Patino-Prado, 533 F.3d 304, 309 (5th
Cir. 2008). He does not challenge the amount of marijuana found or that such
a large amount would allow a finding of intent to distribute. See United States
v. Williamson, 533 F.3d 269, 278-79 (5th Cir. 2008). Rather, he argues that,
even though the marijuana was found in the shed, there was no evidence to
show that he knew or was part of any marijuana trafficking activity.
Possession can be established as actual or constructive. “Constructive
possession may be found if the defendant had (1) ownership, dominion, or
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No. 13-40994
control over the item itself or (2) dominion or control over the premises in which
the item is found.” United States v. Meza, 701 F.3d 411, 419 (5th Cir. 2012)
(internal quotation marks omitted). There is evidence that Estevez had
dominion over and access to the shed where the marijuana was found and its
contents. There is evidence that showed that the bundles containing the
marijuana were visible and gave off a strong odor of marijuana. The is also
evidence that Estevez was visibly nervous during the search and stated falsely
that he had lost his keys when they were found in the lock on the shed. See
United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999). This is sufficient to
allow a jury to find that Estevez possessed the marijuana with the intent to
distribute it.
Turning to Estevez’s sentence, we review a district court’s interpretation
or application of the Guidelines de novo and its factual findings for clear error.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Estevez
argues that the district court erred when it applied the two-level weapons
enhancement pursuant to U.S.S.G. § 2D1.1(b)(1). To support the
enhancement, the Government must show that the weapon was found in the
same location where drugs or drug paraphernalia are stored or where part of
the transaction occurred. United States v. Zapata-Lara, 615 F.3d 388, 390 (5th
Cir. 2010). If the showing is made, “the burden shifts to the defendant to show
that it was clearly improbable that the weapon was connected with the
offense.” United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010).
The district court found that the weapons were found at the home where
the marijuana was stored, that the loaded weapons were tools of the drug
trade, and that the weapons were associated with the drug trafficking activity.
Neither in the district court nor on appeal has Estevez produced any evidence
or argument showing that it was clearly improbable that the weapons were
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connected with the offense. The district court did not err in applying the
§ 2D1.1(b)(1) enhancement. See Zapata-Lara, 615 F.3d at 390.
AFFIRMED.
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