IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-41365
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EDUARDO BRISENO-AVILA
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-398-1
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January 30, 2003
Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
Eduardo Briseno-Avila appeals from his conviction of
possession with intent to distribute cocaine and importation of
cocaine. He contends that the district court erred by admitting
testimony based on business records that were lacking in
foundation and that the testimony should not have been allowed
without introduction of the records themselves; that the evidence
was insufficient to support his conviction and sentence because
there was insufficient proof that he knew a hidden compartment in
*
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that this opinion should not be published and is not precedent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. 01-41365
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his vehicle contained a controlled substance and because the
Government failed to prove his knowledge of the type and quantity
of the substance in the hidden compartment; that 21 U.S.C. §§ 841
and 952 are facially unconstitutional in the wake of Apprendi v.
New Jersey, 530 U.S. 466 (2000); and that the district court
erred by failing to adjust his offense level for his mitigating
role in the offense.
Briseno did not object to Daniel Espinosa-Cruz’s testimony
based on the business records of Kiosko, a Mexican ice cream
company for which Briseno worked. As to Espinosa’s testimony,
Briseno’s contention is reviewed under the plain-error standard.
United States v. Fierro, 38 F.3d 761, 773 (5th Cir. 1994). The
jury could rely on Espinosa’s testimony to conclude that Briseno
did not appear for work on the date of his offense and that he
was not acting on Kiosko’s behalf when he entered the United
States. See Permian Petroleum Co. v. Petroleos Mexicanos, 934
F.2d 635, 647 (5th Cir. 1991).
The district court effectively determined that Enrique
Gonzales-Villapando’s testimony based on Kiosko’s records was
admissible pursuant to FED. R. EVID. 803(6). The admission of
Gonzales’s testimony was at most harmless error, if it is assumed
that it was erroneous at all. United States v. Sharpe, 193 F.3d
852, 867 (5th Cir. 1999). Gonzales’s testimony was cumulative of
Espinosa’s previous testimony based on the records.
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Briseno did not object at trial that the Kiosko records
themselves were not introduced into evidence. He does not allege
that the business records did not support Espinosa’s and
Gonzales’s testimony or were suspect in any regard. He has not
shown a clear or obvious error regarding those records that
affected his substantial rights. See United States v. Calverley,
37 F.3d 160, 162-64 (5th Cir. 1994)(en banc).
The jury could have concluded from Espinosa’s and Gonzales’s
testimony that Briseno lied when he told a Federal agent that he
had been sent to the United States on Kiosko business. Briseno’s
dishonesty was sufficient evidence of guilty knowledge to prove
that he knew he carried contraband. See United States v.
Pennington, 20 F.3d 593, 598 (5th Cir. 1994). The Government
need not prove that a defendant had knowledge of the type and
quantity of the controlled substances involved in his offense.
See United States v. Valencia-Gonzales, 172 F.3d 344, 345-46 (5th
Cir. 1999). Briseno’s sufficiency contentions are unavailing.
Briseno is correct that this court has rejected the
proposition that Apprendi rendered the drug-trafficking statutes
facially unconstitutional. United States v. Slaughter, 238 F.3d
580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045 (2001).
Briseno raises the issue to preserve it for possible review by
the Supreme Court.
The district court did not err by denying Briseno an
adjustment for a mitigating role. There is no indication in the
No. 01-41365
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record that anybody else was involved in Briseno’s offense. See
U.S.S.G. § 3B, introductory commentary; U.S.S.G. § 3B1.2,
comment. (n.2).
AFFIRMED.