* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

July 19, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40764

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO NAVARRETE,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. L-03-CR-41-ALL

--------------------

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
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.