* 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opinion should not be published and is not precedent except under the limited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

December 6, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-41453

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO LOZANO-MIRELES,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

No. 5:03-CR-452-2

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

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Alfredo Lozano-Mireles appeals his conviction of and sentence

for conspiracy to possess with intent to distribute in excess of

100 kilograms of marihuana and possession with intent to distribute

in excess of 100 kilograms of marihuana. He argues that the evidence is insufficient to support his conviction because it does not

establish that he participated in a conspiracy or that he possessed
No. 03-41453

-2-

any marihuana. He also contends that he should have received an

adjustment for playing a minimal or minor role in the offense.

Because Lozano-Mireles did not move for judgment of acquittal

on the basis that the evidence was insufficient to establish the

existence of a conspiracy, we review this issue only to determine

whether the record is “devoid of evidence pointing to guilt.” See

United States v. Herrera, 313 F.3d 882, 884-85 (5th Cir. 2002) (en

banc) (internal quotation and citation omitted). Evidence was presented at trial that Lozano-Mireles was arrested after U.S. Border

Patrol agents observed two scouts and eight men carrying backpacks

crossing through a fence in an area known for drug trafficking outside Laredo, Texas, and near the Mexican border. A sensor along a

known drug smuggling trail had previously been activated. Once the

agents announced their presence, the men carrying backpacks dropped

them to the ground, and all but one attempted to flee. 

The one who did not flee instead dropped to the ground and was

found by the agents within a matter of seconds. He was identified

as Lozano-Mireles. Although Lozano-Mireles was not carrying any

drugs at the time of his arrest, he was found about 50 feet away

from several backpacks containing a total of 424 pounds of marihuana. Given these facts, the record is not devoid of evidence

pointing to Lozano-Mireles’s guilt on the conspiracy count.

Lozano-Mireles preserved his sufficiency argument regarding

the element of possession by raising it in the district court. Accordingly, we review it to determine whether any rational trier of
No. 03-41453

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fact could have found that the evidence established guilt beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318

(1979). The evidence must be examined as a whole and construed in

the light most favorable to the prosecution. United States v. Lombardi, 138 F.3d 559, 560 (5th Cir. 1998). To establish possession

with intent to distribute marihuana, the government was required to

prove that Lozano-Mireles (1) knowingly (2) possessed marihuana

(3) with the intent to distribute it. See United States v. DiazCarreon, 915 F.2d 951, 953 (5th Cir. 1990). 

The evidence presented at trial was sufficient to show that

Lozano-Mireles knowingly possessed a backpack containing marihuana.

Additionally, his intent to distribute may be inferred from the

quantity of drugs involved. See United States v. Casilla, 20 F.3d

600, 603 (5th Cir. 1994). Because a rational trier of fact could

have found that the evidence established Lozano-Mireles’s guilt of

possession with intent to distribute marihuana beyond a reasonable

doubt, his conviction is affirmed. See Jackson, 443 U.S. at 318.

Lozano-Mireles also contends that, assuming arguendo that he

was involved in the offense, he was only a “mule” used to transport

a bag across the border, so the district court should have given

him a downward sentencing adjustment under U.S.S.G. § 3B1.2 based

on his role in the offense. Because this issue is raised for the

first time on appeal, we review only for plain error. United

States v. Mares, 402 F.3d 511, 520 (5th Cir.), cert. denied, 126 S.

Ct. 43 (2005).
No. 03-41453

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To establish plain error, Lozano must show (1) error (2) that

is plain; (3) that affects his substantial rights; and (4) that affects the fairness, integrity, or public reputation of judicial

proceedings. Id. Lozano has not met this standard. See United

States v. Pofahl, 990 F.2d 1456, 1485 (5th Cir. 1993); United

States v. Buenrostro, 868 F.2d 135, 137-38 (5th Cir. 1989).

AFFIRMED.