### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40299 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. ENRIQUE VEGA-MILIAN, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-553-1

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Defendant-Appellant Enrique Vega-Milian appeals his c o n viction of possession with i ntent to distribute marijuana. V e g a - M i l i an, a truck driver,

c o n t e nds that his wife’s p roffered testimony th at he told her he p lanned t o return to a truck stop should have been a dmitted pursuant to Rule 8 03(3) of the Federal Rules of E vidence to bolster his testimony that he in fact returned to the truck stop to pick u p a legitimate load o f m erchandise

. He argues that the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February22, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40299 Document: 00512152154 Page: 1 Date Filed: 02/22/2013No. 12-40299

district court deprived him of his right to present a d e f e n s e by sustaining the government’s hearsay objection. Vega-Milian raised the hearsay argument in the district court. He did not raise the constitutional argument. We review the hearsay argument for abuse of discretion, see United States v. N a rviz-Guerra , 1 48 F.3d 530, 5 3 6 (5th Cir. 1998), and the constitutional argument under the plain erro r standard, see United States v. Ferguson , 211 F.3d 878, 886 (5th Cir. 2000). Any error i n sustaining the government’s hearsay objection was harmless. See United States v. El-Mezain, 664 F.3d 467, 526 (5th C ir. 2011), cert. denied , 133 S. Ct. 525 (2012). V ega-Milian was stopped with two tons of marijuana worth over $3.3 million in the trailer portion of his t ruck, which took a team of agents between thre e a n d f our hours t o unload. He h ad a bogus bill of lading, and he either tampered w ith his l ogbooks as he testified he did or te stified falsely about d oing so. As he w as alone i n the vehicle when he w as stopped, the j u ry could have inferred that Vega-Milian possessed the marijuana in th e tr ail e r . See U nited S tates v. Lopez , 979 F.2d 1024, 1031 ( 5th Cir. 1992). The j ury could also hav e i n f

e r r ed from the m assive quantity and value of the marijuana that Vega-Milian intended to distribute the drug, see id., and that it would be most unlikely for a drug-distribution ring to trust a n unknown driver w ith such a large cargo, s ee United States v. Gonzalez-Rodriguez , 621 F.3d 354, 362 (5th Cir. 2010). And the jury c ould h ave infe r r e d Vega-Milian’s guilty i ntent from the bogus bill of lading and the testimony about the logbooks. In the face of this s trong evidence of Vega-Milian’s guilt, testimony from his wife that h e told her he intended to return to the truck stop, to which, he testified, he a ctually returned, would not have affected the outcome of the trial. Any error i n s us t ai ni n g th e gov e r n m ent’s objection, therefore, was harmless. See E l

- M ezain , 664 F.3d at 526. For the s ame reasons, Vega-Milian c a n n o t demonstr a te the prejudice necessary to prevail o n his constitutional claim on plain error review. See Puckett v. United States , 556 U.S. 129, 135 (2009).
2 Case: 12-40299 Document: 00512152154 Page: 2 Date Filed: 02/22/2013No. 12-40299

Finally, Vega-Milian c ontends that the evidence was insufficient to support his conviction because the government was obliged to prove his knowledge of the type and quantity of the drug he c a rried. H e concedes that this issue is foreclosed by U nited States v. Betancourt , 5 86 F.3d 303 (5th C i r . 2009), but he r aises i t to preserve i t for further review. Vega-Milian is correct that his contention is foreclosed. See id. at 308-09. AFFIRMED.

3 Case: 12-40299 Document: 00512152154 Page: 3 Date Filed: 02/22/2013