United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-50097
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFREDO RIOS-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-425-ALL-PRM
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alfredo Rios-Torres (Rios) appeals his conviction on one
count of importation of marijuana into the United States and one
count of possession of marijuana with intent to distribute. We
disagree with Rios that the evidence was insufficient to support
the jury’s verdict and, therefore, we affirm his conviction.
Rios first challenges the evidence regarding his knowledge
of the marijuana, an essential element for both the possession
and importation charges. See United States v. Lopez, 74 F.3d
*
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this opinion should not be published and is not precedent except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. 05-50097
-2-
575, 577 (5th Cir. 1996). As Rios made a timely Rule 29 motion
for acquittal based on this element, we review under the usual
“rational jury” standard. See United States v. Villarreal, 324
F.3d 319, 322 (5th Cir. 2003). As the marijuana was concealed,
knowledge cannot be inferred from Rios’s control of the van in
which the marijuana was found. See United States v. Ortega
Reyna, 148 F.3d 540, 543-44 (5th Cir. 1998). However, there was
sufficient circumstantial evidence of Rios’s knowledge, including
his nervous behavior before and after the marijuana was
discovered and his changing stories regarding where he obtained
the marijuana and what he planned to do with it. See id.; see
also United States v. Moreno, 185 F.3d 465, 471-72 (5th Cir.
1999). Although Rios offered explanations for his
inconsistencies, the jury was free to choose between reasonable
constructions of the evidence. See Ortega Reyna, 148 F.3d at
543. A rational jury or trier of fact could conclude, as the
jury did here, that the evidence established his knowledge of the
marijuana beyond a reasonable doubt.
Rios also challenges the jury’s finding of intent to
distribute and that he imported the marijuana into the United
States from Mexico. In his initial Rule 29 motion, Rios
specifically challenged only the sufficiency of evidence
regarding knowledge. Thus, he waived his challenge on any other
specific elements. See United States v. Herrera, 313 F.3d 882,
884-85 (5th Cir. 2002) (en banc). Although Rios subsequently
No. 05-50097
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sought to include intent to distribute in his Rule 29 challenge,
he did so after the jury had retired to deliberate, rendering his
challenge untimely. FED. R. CIV. P. 29. Further, at no time did
he specifically challenge the sufficiency of the evidence on
importation. Thus, he did not preserve these issues, and we
review to determine whether the record is devoid of evidence to
support the jury’s verdict. See id. at 884.
With respect to intent to distribute, such intent may be
inferred solely from the possession of an amount of drugs too
large for personal use by the possessor. See United States v.
Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir. 1986); United States
v. Flynn, 664 F.2d 1296, 1307 (5th Cir. 1982). Here, the total
weight of the marijuana was 217 pounds, and it was packaged and
hidden in 29 boxes. Even under the more generous “rational
juror” standard, we conclude that this evidence was sufficient
for the jury to infer that the marijuana was intended for
distribution.
As to importation, it is clear from the evidence that Rios
had crossed from Juarez, Mexico, into El Paso, Texas, with the
tiles. There were numerous references to Rios obtaining the
tiles in Mexico and crossing over to bring the tiles to El Paso
to avoid paying import fees. The officers who testified made it
clear that their function was to investigate vehicles crossing
into the United States from Mexico. Even under the “rational
juror” standard, the evidence of importation passes muster.
No. 05-50097
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For the foregoing reasons, we AFFIRM Rios’s conviction.