IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40935
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OSCAR JAVIER GUEVARA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-64-ALL
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January 14, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Oscar Javier Guevara appeals his conviction and his 240-month
sentence for possession with intent to distribute cocaine and
marijuana. Guevara contends that the Government did not produce
evidence sufficient to establish that he had knowledge that the
trailer contained cocaine and marijuana. Guevara challenges his
sentence under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
*
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that this opinion should not be published and is not precedent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. 01-40935
-2-
We review the record to determine “whether any reasonable
trier of fact could have found that the evidence established the
essential elements of the crime beyond a reasonable doubt.” United
States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). We view
the evidence “in the light most favorable to the government,” and
we draw all reasonable inferences and make all credibility choices
in support of the verdict. Id.
Guevara’s reliance on his demeanor at the checkpoint to
demonstrate a lack of knowledge is unavailing. We have held that
both nervousness and the lack of nervousness can lead the jury to
infer knowledge of contraband. See United States v. Garcia-Flores,
246 F.3d 451, 454 (5th Cir. 2001).
The evidence showed that Guevara produced an unsigned bill of
lading that named a shipper and a receiver located at addresses
that did not exist. Guevara, a driver with about six years’
experience, testified that he accepted an unsecured load from a
total stranger. The evidence showed that the trucking industry’s
practice is for drivers to require a seal or some other form of
security on a trailer. Furthermore, a jury may infer a defendant’s
guilty knowledge based on the quantity of drugs. See Garcia-
Flores, 246 F.3d at 455. The evidence was sufficient to establish
that Guevara had knowledge of the marijuana and cocaine in the
trailer and to convict him of possession with intent to distribute
marijuana and cocaine.
No. 01-40935
-3-
Guevara contends that the district court’s use of a 194-pound
quantity of cocaine provided in the presentence report to determine
his sentence violated Apprendi, 530 U.S. at 490. He asserts that
the parties stipulated that the cocaine quantity was 120 pounds.
The parties stipulated that the gross weight of the cocaine
was 123 kilograms. The presentence report established the net
weight of the cocaine to be 194 pounds, or 87.94 kilograms. At
sentencing, Guevara conceded that the cocaine quantity provided by
the presentence report was correct.
Guevara’s sentence does not implicate the concerns addressed
by Apprendi, 530 U.S. at 490. His sentence does not exceed the
statutory maximum sentence authorized in 21 U.S.C. § 841(b)(1)(A).
United States v. Doggett, 230 F.3d 160, 165 (5th Cir. 2000). The
judgment of the district court is AFFIRMED.
United States v. Guevara
Combined Opinion