United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 19, 2004
Charles R. Fulbruge III
Clerk
No. 03-40764
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO NAVARRETE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-41-ALL
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Pedro Navarrete was convicted by a jury of possession with
intent to distribute marijuana and importation of marijuana into
the United States and was sentenced to 51 months’ imprisonment
and three years’ supervised release. He appeals his conviction
and sentence. Navarrete argues that the Government failed to
prove beyond a reasonable doubt that the substance found in his
gasoline tank was in fact marijuana because the Government did
not produce a chemist to offer testimony as to the substance’s
*
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this opinion should not be published and is not precedent except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. 03-40764
-2-
nature nor did it introduce evidence of chemical testing of the
substance.
Agents Menchaca and Mitchell testified that the substance
field tested positive for marijuana. The Government also
introduced a DEA lab report showing that chemical analysis
confirmed the field test that the substance was marijuana.
Navarrete argues that this document was offered for purposes of
establishing the chain of custody only and not for identification
of the substance. However, the U.S. Attorney stated that the
report also included the analysis that was done which showed that
the substance was marijuana, and Navarrete’s counsel stated that
he was not objecting to the admission of the document. The
evidence was sufficient to show that the substance was marijuana
beyond a reasonable doubt. United States v. Bermea, 30 F.3d
1539, 1551 (5th Cir. 1994).
Navarrete argues that the district court erred in assessing
a two-point upward adjustment to his offense level under U.S.S.G.
§ 3C1.1 because it was not conclusive that he committed perjury
or obstructed justice in any way. He contends that the district
court’s finding does not meet the standard required by United
States v. Dunnigan, 507 U.S. 87, 95 (1993).
Navarrete’s testimony concerning how often he refueled and
how much gasoline he put in the gasoline tank on his return trip
from Mexico was inherently contradictory. If the gas gauge was
broken and indicating that he was running out of gas when he was
No. 03-40764
-3-
not, then he would not have been able to refill with 18-20
gallons each time. Navarrete’s suggestion that some unknown
person put the marijuana in the tank without his knowledge was
rightly noted by the district court to be incredible. Based on
this testimony, the district court did not clearly err in finding
that Navarrete had committed perjury warranting the upward
adjustment for obstruction of justice under U.S.S.G. § 3C1.1, and
the district court did not plainly err in its articulation of its
finding of perjury. United States v. Dunnigan, 507 U.S. 87, 95
(1993); United States v. Holman, 314 F.3d 837, 846 (7th Cir.
2002).
AFFIRMED.