* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

April 27, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 03-40837

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR RUBIO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(C-02-CR-351-1)

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

Hector Rubio appeals his conviction, following a jury trial,

of possession with intent to distribute in excess o f 1,000

kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A). Rubio was sentenced, i nter alia

, to a 135-month prison

term. He challenges the sufficiency of the evidence to support his

conviction (on two bases), the admission of drug courie r profile

testimony, and the Government’s closing rebuttal remarks.No.

-2-

2 Rubio’s first basis for the sufficiency challenge is that the

evidence was insufficient to support the knowledge element of his

conviction. Among other evidence, Rubio was stopped at a border

checkpoint driving a tractor-trailer that he owned; in the back of

the trailer, amid scattered produce, was more than 5000 pounds of

marijuana, worth approximately $4.3 million; when stopped, he

watched the drug-sniffing dog in a fashion which made the Border

Patrol Agent suspicious; he lied to the Agent about whether he had

observed his trailer being loaded; the bills of lading had an nonexistent address; and he was unable to produce a means of

contacting the person to whom he was delivering the produce. The

evidence, viewed in the requisite light mo st favorable to the

verdict, was sufficient for a jury to reasonably infer Rubio’s

guilty knowledge. See United States v. Chavez , 119 F.3d 342, 347

(5th Cir.), cert. denied sub nom. Rodrig uez-Guerra v. United

States

, 522 U.S. 1021 (1997); United States v. Richardson

, 848 F.2d

509, 513 (5th Cir. 1988); United States v. Ramos-Garcia , 184 F.3d

463, 466 (5th Cir. 1999).

The second basis for the sufficiency challenge i s the claim

that the Government did not prove beyond a reasonable doubt that

Rubio knowingly possessed the particular type (marij u ana) and

quantity (more than 1000 kilograms) of controlled s ubstance at

issue. Rubio concedes that this claim is foreclosed by U nited

States v. Gamez -Gonzalez , 319 F.3d 695, 700 (5th Cir.), c ert.No.

-3-

3 denied

, 123 S. Ct. 2241 (2003). He presents it only to preserve it

for further possible review.

Rubio maintains the district court ab used its discretion in

allowing drug courier pr ofile testimony from a Drug Enforcement

Agency (DEA) Agent. F E D

. R. E VID

. 103; United States v. Jackson

, 50

F.3d 1335, 1340 (5th Cir. 1995) (evidentiary rulings reviewed for

abuse of discre tion). The Government theorized that Rubio could

not afford to pay cash for the tractor-trailer and a drug

organization gave him the money to purchase it for his use, with

the understan ding that when called upon, he must transport drugs

for the organization. The DEA Agent testified in support of this

theory. He testified, in pertinent part:

I know of a couple of instances where the drug

o rganizations actually purchase 18 wheelers

,

tractor and trailers, for the drivers to allow

them to drive the tractor-trailer when they

need it. But when the drug organizations call

them, they will actually run loads of drugs

for these organizations.

(Emphasis added). These t wo instances were in the 70 to 100 cases

the DEA Agent had worked.

An experienced Agent may testify as to the significance of

certain conduct or methods of operation that are unique to the drug

business, “as such testimony often is helpful in assisting the

trier of fact to understand the evidence”. U nited States v.

Washington , 44 F.3d 1271, 1283 (5th Cir.), cert. denied , 514 U.S.

1132 (1995); see also United States v. Ramirez-Velasquez

, 322 F.3dNo.

-4-

4 868, 879 (5th Cir.), cert. denied , 124 S. Ct. 107 (2003). On the

other hand, the Government cannot use the Agent’s testimony in

order to prove guilty knowledge. S ee United States v. MendozaMedina

, 346 F.3d 121, 129 (5th Cir. 2003), cert. denied

, 124 S. Ct.

1161 (2004); Ramirez-Velasquez , 322 F.3d at 879; United States v.

Gutierrez-Farias

, 294 F.3d 657, 663 (5th Cir. 2002), cert. denied

,

537 U.S. 1114 (2003). It does not appear that such an attempt was

made. But, even assuming arguendo that the DEA Agent’s testimony

indirectly inferred guilty knowledge of Rubio and, as a result, the

district court abused its discretion in admitting that testimony,

this error was harmless. S ee Washington

, 44 F.3d at 1283; MendozaMedina , 346 F.3d at 129; R amirez-Velasquez

, 322 F.3d at 879;

Gutierrez-Farias , 294 F.3d at 663.

Rubio’s final conte n tion is that there was prosecutorial

misconduct as a result of certain comments made by the Government

in closing argument. As Rubio concedes, because he did not object

at trial, review is only for plain error. Based upon our review of

the record, there was no reversible plain error. U nited States v.

Gallardo-Trapero , 185 F.3d 307, 322 (5th Cir. 1999), cert. denied

sub nom. Hernandez v. United States , 528 U.S. 1127 (2000).

AFFIRMED