* Pursuant to 5 TH C IR

. R. 4 7.5, 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this opinion should not be published and is not precedent except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.

1 United States Court of Appeals

Fifth Circuit



## FILED

December 8, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-50125

c/w No. 04-50127

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALEJANDRO ESPARZA,

Defendant-Appellant.

-------------------- Appeals from the United States District Court

for the Western District of Texas

(DR-01-CR-316-1-WWE)

(DR-03-CR-402-1-WWE)

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

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM: *

Defendant-Appellalnt Alejandro Esparza appeals his convictions

for the knowing and intentional importati on of marijuana and

possession with intent to d istribute marijuana. Esparza argues

that the evidence is insufficient to support his convictions. We

review a sufficiency challenge to determine “whether any reasonable

trier of fact could have found that the evidence established the2

essential elements of the crime beyond a reasonable doubt.” U nited

States v. Ortega Reyna , 148 F.3d 540, 543 (5th Cir. 1998).

Esparza contends that the evidence was insufficient to prove

beyond a reasonable doubt that he knew that there was marijuana

concealed in the camper shell of his truck. He argues that the

circumstantial ev idence presented at trial could support equally

either guilty knowledge or a lack thereof. Esparza’s contentions

are not persuasive.

The evidence adduced at trial showed that Esparza was

excessively nervou s in the presence of both a male and a female

inspector. The jury could have rationally inferred that, by

jumping out of his vehicle and raising the hood, Esparza was

attempting to divert the inspector’s attention from the camper

shell of the truck. The paint in the camper shell was fresh enough

that it emi tted a strong odor and it was still tacky. Thus, the

jury could have rationally inferred that the paint had been applied

during the two weeks that Esparza claimed to have owned the truck.

Furthermore, as the vehicle was not registered to Esparza, the jury

could have rationally inferred that his claim of ownership was a

lie told in the hope of avoiding inspection. Finally, for a trier

of fact to believe that Esparza was innocent because he was unaware

of the presence of the drugs in the camper shell of the truck would

have required the trier to accept either that some unknown person

had sold Esparza a truck containing a large amount of marijuana or

that, at some time during the two weeks that Esparza claimed to3

have owned the truck, persons unknown to him had surreptitiously

stashed a large amount of drugs in the truck. In contrast, for the

trier of fact to believe that Esparza was guilty because he agreed

to transport the drugs requires the acceptance of no such unusual

and implausible circumstances. S ee United States v. Cruz

,

___ F.3d

___ (5th Cir. Oct. 7, 2004, No. 03-40886), 2004 WL 2251810 at *4.

The eviden ce adduced at trial was sufficient to allow a

rational jury to find beyond a reasonable doubt that Esparza knew

that the mariju ana was present in the camper shell of his truck.

See Ortega Reyna

, 148 F.3d at 543. A ccordingly, Esparza’s

convictions are affirmed, as is the district court’s order revoking

Esparza’s supervised release.

AFFIRMED.