United States Court of Appeals

Fifth Circuit



## FILED

June 7, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-40478

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO MARTINEZ-LUGO,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:

A jury found Roberto Martinez-Lugo guilty of the

importation and possession with the intent to distribute approximately 772 kilograms of marijuana, which was found secreted in the

tires of the truck he was driving across the Texas-Mexico border.

On appeal, he challenges the sufficiency of the evidence to convict

and the propriety of his senten ce in light of U nited States v.

Booker

,

__ U. S. __, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We

affirm.

A ppellant contends first that the evidence showed onl y

that he was hired at random by an unknown man and that he was1 “A conviction for the offense of possession of marijuana with intent

to distribute requires proof that the defendant (1) knowingly (2) possessed

marijuana (3) with intent to distr i bute it.” U nited States v. Cano-Guel

, 167

F.3d 900, 904 (5th Cir. 1999). Conviction of the offense of “[i]mportation of

marijuana

. . . requires proof that: (1) the defendant played a role in bringing

a quantity of marijuana into the United States from a place outside the United

States; (2) the defendant knew the substance was marijuana; and (3) the defendant

knew the substance would enter the United States.” Id.

2 “duped in to driving the tractor-trailer across the border.” In

evaluating the sufficiency of the evidence, this court asks whether

any reasonable trier of fact could have found that the evidence

established the essential elements of the crime beyond a reasonable

doubt. U nited States v. Ortega Reyna

, 148 F.3d 540, 543 (5th Cir.

1998). We consider the evidence in the light most favorable to the

verdict, drawin g all reasonable inferences in support of the

verdict. I d. Critical to establishing either the possession or

impor tation offense of which appellant was convicted, the

Government must adduce su fficient evidence of his guilty

knowledge

, 1 which is the element that Martinez-Lugo challenges in

this case. Direct evidence of such knowledge is rarely available.

When, as here, drugs are found in a “hidden compartment”

of a vehicle, there “is at least a fair assumption that a third

party might have concealed the controlled substances in the vehicle

with the intent to use the unwitting defendant as the carrier in a

smug gling enterprise.” C ano-Guel

, 167 F.3d at 904-05 (citation

omitted). Thus, “additional circumstantial evidence that is

suspicious in nature or demonstrates guilty knowledge is required.”

United States v. Jones

, 185 F .3d 459, 464 (5th Cir. 1999). Such3

e vidence “may include nervousness, conflicting statements to la w

enforcement officials, and an implausible story.” I d. Possession

of large amounts of cash and the alteration of a vehicle also

indicate knowledge of hidden contraband. O rtega Reyna

, 148 F.3d at

544.

Martinez-Lugo gave two conflicting explanations for the

circumstances s urrounding his arrest. He initially told the

inspections agent that he worked for Hector Gomez and that he was

en route to a John Deere Dealership in Texas to pick up a tractor.

However, the testimony of both Hector Gomez and the John Deere

salesman revealed that Martinez-Lugo’s story wa s a complete

fabrication. Martinez-Lugo also gave the agent the conflicting and

implausible story ab out being hired by an unidentified man in

Reynosa who then drove him to the Progreso Port of Entry in order

to drive a trailer across the border. In addition, Martinez-Lugo

had a large amount of cash on his person. Further, the prosecution

presented evidence establishing that Martinez-Lugo had attempted to

alter the tractor-trailer so that it would resemble one belonging

to a reputable transporter, and that he submitted false documentation to the insurance provider.

Marti nez-Lugo argues that some of the evidence cuts at

least equally against any consciousness of gu ilt: he did not

attempt to flee from the Port of Entry; there was no evidence that

he was nervous; and he sufficiently explained the $800 in cash on

his person. He fails to note, however, that one of the agents4

testified that he looked “scared” and “shocked,” and the insurance

a gent testified that Martinez-Lugo looked nervous while in her

office. And although the marijuana in the tires had deteriorated,

suggesting that appellant did not put it there, this does not

negate that he could have known of its presence. In short, because

there was sufficient evidence from which the jury could have

inferred guilty knowledge, it is not necessary that every

reasonable hypothesis of innocence be excluded. S ee Ortega Reyna

,

148 F.3d at 543. The evidence was sufficient to convict.

Martinez-Lugo’s second contention is that his sentence

should be vacated because it was imposed pursuant to a mandatory

application of the sentencing Guidelines. Although he couches his

argument in terms of a Sixth Amendment violation and “ B ooker ”

error, Martinez-Lugo’s sentence w as enhanced based only on the

amount of marijuana found in the tires of the tractor-trailer,

i.e., the amount with which he was charged and found guilty by the

jury. Technically, this is a “ Fanfan ” error, not a Booker error.

See Unite d States v. Villegas , 404 F.3d 355, 364 (5th Cir. 2005)

(discussing the distinction between the two types of error asserted

by the respondents in Booker ); see also United States v. Mares

, 402

F.3d 511, 520, n.9 (5th Cir. 2005 ) (same). We review this

contention, unpreserved in the district court, under a plain error2 As stated in Mares :

An appellate court may not correct an error the defendant failed to

raise in the district court unless there is "(1) error, (2)that is

plain, and (3) that affects substantial rights. If all three

conditions are met an appellate court may then exercise its

discretion to notice a forfeited er ror but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.

Id. (quoting United States v. Cotton , 535 U.S. 625, 631, 122 S. Ct. 1781, 1785

(2002)).

5 standard. 2 S ee Mares

, 402 F.3d at 520. The error here satisfies

the first two prongs of that standard by being both “plain” and

“error.”

The third prong of plain error analysis considers whether

the error affected Martinez-Lugo’s substantial rights. Id. In

United States v. Olano

, the Supreme Court held that the standard

for determining whether an error affects a litigant’s substantial

rights requires a showing that the error “must have affected the

outcome of the district court proceedings.” 5 07 U.S. 725, 734, 113

S. Ct. 1770, 1778 (1993).

Martinez-Lugo argues that the district court’s application of the Guidelines as mandatory, notwithstanding the absence of

Booker error, is a “structural error” that is “insuscep tible” to

the above analysis. This argument is inconsistent with this

court’s analysis in Mares and Villegas , wherein we reaffirmed the

requireme nt that the error affect the particular defendant’s

substantial rights, drawing no distinction between a “ Booker ” error

and a “ Fanfan ” error for the purposes of employing plain error6

review. S ee Mares

, 402 F.3d at 520-21; Villegas

, 404 F.3d at 364

.

Other circuits have rejected similar “structural” error arguments.

See United States v. White , 405 F.3d 208, 224 (4th Cir. 2005)

(finding that “the error of s entencing [appellant] under a

mandatory guidelines regime does not warrant a presumption of

prejudice, nor is it structural”); United States v. Rodriquez

, 406

F.3d 1261, 1264-75, *2-3 (11th Cir. 2005) (rejecting a similar

structural argument); United States v . Gonzales-Huerta , 403 F.3d

727, 734 (10th Cir. 2005) (holding that a “non-constitutional

Booker error does not constitute structural error”). We find that

there is no reason to distinguish these cases simply because they

dealt with “ Booker ” error, rather than “ Fanfan ” error.

Martinez-Lugo also contends that the record in his case

“shows at least a reasonable probability that, but for the error,

the outcome of the sentencing would have been different.” In

Mares

, this court indicated that the defendant had to show more

than an equal probability of prejudice. 402 F.3d at 521. This

court also indicated that if the effect of the error was

“unce rtain,” the defendant could not meet his burden. I d. We

disagree that this appellant has met his burden.

The court sua sponte reduced Martinez-Lugo’s total

offense level for the estimated weight of the wrappings of the

drugs and also reduced his offense level for a minor role in the

offense, thereby reducing his guidelines sentence from a minimum of

97 months to a minimum of 63 months. Further, the court imposed7

the minimum sentence of the lowered guidelines range, 63 months.

This sentence exceeded the statutory minimum by only three months.

The court awarded Martinez-Lugo considerable leniency, but the

record offers no basis for inferring that, had he used the

guidelines as “advisory,” the court would have reduced the sentence

further within the narrow three-month range between the statutory

minimum, 21 U.S.C. § 841(b)(1)(B), and appellant’s actual sentence.

For the foregoing reasons, we conclude, first, that the

evidence was sufficient to convict Martinez-Lugo, and second, that

a district court’s Fanfan error will be treated the same as Booker

error in cases where the sentencing predated those decisions.

Finally, appellant has not persuaded us that his substantial rights

were affected by the court’s imposition of his sentence here under

the mistaken assumption that the Guidelines were mandatory.

The conviction and sentence are AFFIRMED

.