United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 7, 2005
Charles R. Fulbruge III
Clerk
No. 04-40478
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO MARTINEZ-LUGO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:
A jury found Roberto Martinez-Lugo guilty of the
importation and possession with the intent to distribute approxi-
mately 772 kilograms of marijuana, which was found secreted in the
tires of the truck he was driving across the Texas-Mexico border.
On appeal, he challenges the sufficiency of the evidence to convict
and the propriety of his sentence in light of United States v.
Booker, __ U.S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We
affirm.
Appellant contends first that the evidence showed only
that he was hired at random by an unknown man and that he was
“duped into driving the tractor-trailer across the border.” In
evaluating the sufficiency of the evidence, this court asks 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 consider the evidence in the light most favorable to the
verdict, drawing all reasonable inferences in support of the
verdict. Id. Critical to establishing either the possession or
importation offense of which appellant was convicted, the
Government must adduce sufficient evidence of his guilty
knowledge,1 which is the element that Martinez-Lugo challenges in
this case. Direct evidence of such knowledge is rarely available.
When, as here, drugs are found in a “hidden compartment”
of a vehicle, 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.” Cano-Guel, 167 F.3d at 904-05 (citation
omitted). Thus, “additional circumstantial evidence that is
suspicious in nature or demonstrates guilty knowledge is required.”
United States v. Jones, 185 F.3d 459, 464 (5th Cir. 1999). Such
1
“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.” United States v. Cano-Guel, 167
F.3d 900, 904 (5th Cir. 1999). Conviction of the offense of “[i]mportation of
marijuana . . . 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 knew the substance was marijuana; and (3) the defendant
knew the substance would enter the United States.” Id.
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evidence “may include nervousness, conflicting statements to law
enforcement officials, and an implausible story.” Id. Possession
of large amounts of cash and the alteration of a vehicle also
indicate knowledge of hidden contraband. Ortega Reyna, 148 F.3d at
544.
Martinez-Lugo gave two conflicting explanations for the
circumstances surrounding his arrest. He initially told the
inspections agent that he worked for Hector Gomez and that he was
en route to a John Deere Dealership in Texas to pick up a tractor.
However, the testimony of both Hector Gomez and the John Deere
salesman revealed that Martinez-Lugo’s story was a complete
fabrication. Martinez-Lugo also gave the agent the conflicting and
implausible story about being hired by an unidentified man in
Reynosa who then drove him to the Progreso Port of Entry in order
to drive a trailer across the border. In addition, Martinez-Lugo
had a large amount of cash on his person. Further, the prosecution
presented evidence establishing that Martinez-Lugo had attempted to
alter the tractor-trailer so that it would resemble one belonging
to a reputable transporter, and that he submitted false documenta-
tion to the insurance provider.
Martinez-Lugo argues that some of the evidence cuts at
least equally against any consciousness of guilt: he did not
attempt to flee from the Port of Entry; there was no evidence that
he was nervous; and he sufficiently explained the $800 in cash on
his person. He fails to note, however, that one of the agents
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testified that he looked “scared” and “shocked,” and the insurance
agent testified that Martinez-Lugo looked nervous while in her
office. And although the marijuana in the tires had deteriorated,
suggesting that appellant did not put it there, this does not
negate that he could have known of its presence. In short, because
there was sufficient evidence from which the jury could have
inferred guilty knowledge, it is not necessary that every
reasonable hypothesis of innocence be excluded. See Ortega Reyna,
148 F.3d at 543. The evidence was sufficient to convict.
Martinez-Lugo’s second contention is that his sentence
should be vacated because it was imposed pursuant to a mandatory
application of the sentencing Guidelines. Although he couches his
argument in terms of a Sixth Amendment violation and “Booker”
error, Martinez-Lugo’s sentence was enhanced based only on the
amount of marijuana found in the tires of the tractor-trailer,
i.e., the amount with which he was charged and found guilty by the
jury. Technically, this is a “Fanfan” error, not a Booker error.
See United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005)
(discussing the distinction between the two types of error asserted
by the respondents in Booker); see also United States v. Mares, 402
F.3d 511, 520, n.9 (5th Cir. 2005) (same). We review this
contention, unpreserved in the district court, under a plain error
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standard.2 See Mares, 402 F.3d at 520. The error here satisfies
the first two prongs of that standard by being both “plain” and
“error.”
The third prong of plain error analysis considers whether
the error affected Martinez-Lugo’s substantial rights. Id. In
United States v. Olano, the Supreme Court held that the standard
for determining whether an error affects a litigant’s substantial
rights requires a showing that the error “must have affected the
outcome of the district court proceedings.” 507 U.S. 725, 734, 113
S. Ct. 1770, 1778 (1993).
Martinez-Lugo argues that the district court’s applica-
tion of the Guidelines as mandatory, notwithstanding the absence of
Booker error, is a “structural error” that is “insusceptible” to
the above analysis. This argument is inconsistent with this
court’s analysis in Mares and Villegas, wherein we reaffirmed the
requirement that the error affect the particular defendant’s
substantial rights, drawing no distinction between a “Booker” error
and a “Fanfan” error for the purposes of employing plain error
2
As stated in Mares:
An appellate court may not correct an error the defendant failed to
raise in the district court unless there is "(1) error, (2)that is
plain, and (3) that affects substantial rights. If all three
conditions are met an appellate court may then exercise its
discretion to notice a forfeited error but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.
Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S. Ct. 1781, 1785
(2002)).
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review. See Mares, 402 F.3d at 520-21; Villegas, 404 F.3d at 364.
Other circuits have rejected similar “structural” error arguments.
See United States v. White, 405 F.3d 208, 224 (4th Cir. 2005)
(finding that “the error of sentencing [appellant] under a
mandatory guidelines regime does not warrant a presumption of
prejudice, nor is it structural”); United States v. Rodriquez, 406
F.3d 1261, 1264-75, *2-3 (11th Cir. 2005) (rejecting a similar
structural argument); United States v. Gonzales-Huerta, 403 F.3d
727, 734 (10th Cir. 2005) (holding that a “non-constitutional
Booker error does not constitute structural error”). We find that
there is no reason to distinguish these cases simply because they
dealt with “Booker” error, rather than “Fanfan” error.
Martinez-Lugo also contends that the record in his case
“shows at least a reasonable probability that, but for the error,
the outcome of the sentencing would have been different.” In
Mares, this court indicated that the defendant had to show more
than an equal probability of prejudice. 402 F.3d at 521. This
court also indicated that if the effect of the error was
“uncertain,” the defendant could not meet his burden. Id. We
disagree that this appellant has met his burden.
The court sua sponte reduced Martinez-Lugo’s total
offense level for the estimated weight of the wrappings of the
drugs and also reduced his offense level for a minor role in the
offense, thereby reducing his guidelines sentence from a minimum of
97 months to a minimum of 63 months. Further, the court imposed
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the minimum sentence of the lowered guidelines range, 63 months.
This sentence exceeded the statutory minimum by only three months.
The court awarded Martinez-Lugo considerable leniency, but the
record offers no basis for inferring that, had he used the
guidelines as “advisory,” the court would have reduced the sentence
further within the narrow three-month range between the statutory
minimum, 21 U.S.C. § 841(b)(1)(B), and appellant’s actual sentence.
For the foregoing reasons, we conclude, first, that the
evidence was sufficient to convict Martinez-Lugo, and second, that
a district court’s Fanfan error will be treated the same as Booker
error in cases where the sentencing predated those decisions.
Finally, appellant has not persuaded us that his substantial rights
were affected by the court’s imposition of his sentence here under
the mistaken assumption that the Guidelines were mandatory.
The conviction and sentence are AFFIRMED.
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