United States Court of Appeals Fifth Circuit 

## FILED November 29, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________ No. 05-40936

____________ UNITED STATES OF AMERICA,
Pl aint iff- Appellee,
versus ARNOLD ANTHONY MIRELES, Defendant-Appellant.
Appeal from the United States District Court For the Southern District of Texas
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges. EMILIO M. GARZA, Circuit Judge: Arnold Ant hony Mireles (“ Mireles”), federal prisoner # 41294-179, appeals his conviction and sentence on two counts of possession wit h int ent to distribute mo re th an 50 kilo grams of marijuana in vio lat io n of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). Mireles argues that: (1) there was insufficient evidence to sup port hi s conviction; (2) the provisions of 21 U.S.C. §§ 841(a) and (b) are facially unconstitutional under the rule of Apprendi v. New Jersey , 530 U.S. 466 (2000); and (3) the special condition of his supervised release in the district court's written judgment impermissibly conflicts wit h-2-

the condition contained in the oral pronouncement of his sentence. I. In 2004, Mireles lived in Falfurrias, Texas and drove a tow truck f or hi s father’s business, Arnold’s Wrecker Service (“Arnold’s”). Brooks County is in clo se proximity to the United States Border Patrol Checkpoint on Highway 281 near Falfurrias (“Falfurrias Checkpoint”). The Brooks County Sheriff’s Office (BCSO) is responsible fo r responding to calls fo r assistance from the local
com munit y. If a caller needs a wrecker service, a BCSO dispatcher will dispatch a county-contracted wrecker services, of which Arnold’s is one. The primary wrecker service rotated every week to spread the work among the contracted services. Mireles frequently retrieved abandoned or seized vehicles alo ng Highway 281, of ten passing through the Falfurrias Checkpoint. Mireles was also friends with BCSO Deputy Sheriff Homer Morales, Jr. and often rode on patrol with Morales. On August 28, 2004, at 3:22 p.m , Mireles called BCSO and info rm ed Cavazos th at “a guy” would soon call and report a broken-down vehicle. Mireles testified that a man had called him to tow
a pickup truck lo cated at Delicia’s Restaurant, south of the Falfurrias Checkpoint. Mireles told Cavazos that he had already spoken to this person and instructed him to call BCSO before Mireles would agree to pick up the vehicle. Mireles testified that he often routed private calls through the BCSO to ensure th at the call was legit imat e. Cavazos testified that the call was unusual but that wreckers som

etimes routed their private calls th rough the BCSO. Mireles instructed Cavazos to call Mireles back when “the guy” called. Several minut es lat er, Cavazos received a telephone call from a person requesting a wrecker. The person said th at he had already called Mireles and had been instructed to call BCSO first. The caller specifically wanted Arnold’s and provided Cavazos with Mireles’s correct cellular telephone-3-

number. The caller did not provide Cavazos with a name, telephone number, or any identifying info rmation, nor did he tell Cavazos the make or lo cation of the vehicle. Cavazos then called Mireles back and told him “[t]hat guy called me.” Because Mireles had his arm in a sling from an autom obile accident, he had his friend, Juan Ochoa, go wit h him to help pick up the vehicle. Mireles testified that when they arrived at Delicia’s Restaurant, the only vehicle there was a red extended Chevrolet pickup truck parked by the side of the road. Mireles did not inquire from anyo ne whether the red truck was the vehicle to be towed. Mireles testified th at the keys to the vehicle were inside it
. Ochoa hooked the pickup to the tow truck and the two headed back north to Falfurrias. Border Patrol Agent Beatriz Alaniz-Hinojosa was working the primary inspection lane at the Falfurrias Checkpoint when Mireles arrived, driving the tow truck and towing the red pickup. Agent Alaniz-Hinojosa testified th at Mireles told her that he had retrieved the vehicle from Delicia’s Restaurant and was transpo r ting it north of the Checkpoint. Agent Alaniz-Hinojosa testified that Mireles told her th a t Cavazos had called him and dispatched him to get the broken-down pickup. Agent John Harmon was present at the time and his trained canine alerted to the towed pickup. When asked for the keys to the pickup truck, Mireles gave them to Agent Harmon. Upon searching the picku p truck, Agent Harm on discovered 49 bundles of marijuana, weighing 112 pounds, wrapped in duct tape. The bundles of marijuana were concealed inside and behind the seats and int erior side panels of the truck and were not readily visible to som eone lo oking inside the vehicle. Mireles and Ochoa did not display any of the usual indicators of nervousness that border patrol agents look for in assessing suspicious behavior. Neither Mireles or Ochoa were arrested at th at time because, according to Agent Diaz, there1 A bail out occurs when illegal aliens abandon a vehicle in order to escape the pursuit of

border patrol agents. -4- was no evidence or suspicion th at eit her of them had any knowledge th at the marijuana was in the truck. Aft er Mireles and Ocho a were released, Agent Di az contacted BCSO to verify Mireles’s explanation. At th at time, he learned that Mireles had not actually been officially dispatched to tow a broken-down vehicle. Agent Diaz also discovered that the pickup truck was not actually bro ken down. On October 8, 2004, an unknown person called BCSO and told Cavazos th at his whit e Grand Marquis car was broken down at the Shell Station in Encino, Texas and needed to be towed. Encino is south of the Falfurrias Checkpoint. As Arnold’s was on rotation at the time, Cavazos dispatched Mireles to pick up the vehicle. A video tape from the Shell Station in Encino shows that Mireles was already at or near the Shell Station at the time the init ial call fo r a wrecker was received by Cavazos. Mireles arrived at the Falfurrias Checkpoint driving the Arnold’s wrecker and towing a 1989 whit e Grand Marquis. Border Patrol Agent Oscar De La Garza was working the primary inspection lane. Agent De La Garza testified that Mireles t ol d him t hat the Grand Marquis was from a “bail out”, 1 th at som

eone from BCSO had called him to pick it up, and that he was taking it to BCSO to drop it of f. This was suspicious because border patrol agents usually hear about bail outs immediately and Agent De La Garza was unaware of one. Agent Harmon was also present and his canine alerted to the rear part of the towed vehicle. The trunk was locked and Mireles claimed to n ot h ave the keys. The agents asked Mireles if they could open the trunk with a crowbar and Mireles simply stated th at he did not want to be responsible fo r any damage to the vehicle. As the agents attempted to open the trunk, Agent Harmon noticed that Mireles had started to pace nervously. Mireles then-5-

stated th at he had another call to go on and of fered to leave the Grand Marquis and return fo r it lat er. Once the trunk was opened, the agents found wrapped bundles of marijuana, weighing 152 pounds, hidden in a spare ti re and empty speaker box. At th at time, Mireles was escorted inside the
c heckpoint station to Agent Diaz. Aft er reading him his Miranda rights, Agent Di az informed Mireles th at his August 28th story had not checked o ut. Mi reles became visibly nervous. At that time, Mireles changed his story and told Agent Di az that the Grand Marquis was a broken-down vehicle, rather th an a bail out, and th at he was taking the vehicle to his own lo t, rather th an the BCSO impo und lot. Mireles was then arrested. Officer Gri selda Pendleton, working fo r the DEA, l ater searched Mireles’s wrecker and discovered the keys to the Grand Marquis hidden in a storage com partm ent under the seat. Officer Pendleton also discovered a piece of paper on it wit h the license plate number, make, year, and other info rmation about the Grand Marquis in the wrecker. Finally, Officer Pendleton discovered that the Grand Marquis was not actually broken-down but merely had its battery cables unhooked. At tri al, a jury fo und Mireles guilt y of two counts of possession wit h int ent to distribute mo re th an 50 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c) fo r the August 28th and October 8th stops. The district court sentenced Mireles to 60 months incarceration for the fir st count and 78 months for the second, to be served concurrently, followed by concurrent threeyear terms of supervised release. Out of concern that Mireles would resume commercial truck driving upon his release, the court impo sed a “commercial activit ies on highways” special c ondition that requires Mireles, when stopped on the highway, to info rm authorities th at he is on supervised release fo r drug trafficking and consent to search of his vehicle and person. Mireles appealed.-6- II. Mireles fir st challenges the sufficiency of the evidence to support his conviction on each count of possession wit h int ent to distribute marijuana. Mireles only argues that the government failed to prove th at he knew th at he was transporting drugs, rather th an some other form of contraband. As such, all other arguments challenging the suf ficiency o f t he evidence are waived. S ee Askanase v. Fatjo , 130 F.3d 657, 668 (5th Cir. 1997). When review i ng the sufficiency of the evidence to support a conviction, we “view the evidence in the light mo st favorable to the verdict and determ ine whether a rational jury could have fo und the elements of the offense beyond a reasonable doubt.” U nited States v. Gutierrez-Farias , 294 F.3d 657, 660 (5th Cir. 2002). We recognize that t he j ury was “free to choose among all reasonable constructio n s of the evidence,” United States v. Chaney , 964 F.2d 437, 448 (5th Cir. 1992), and we “accept all credibility choices that tend to support the jury’s verdict.” U nited States
v. Anderson , 933 F.2d 1261, 1274 (5th Cir. 1991). “If the evidence, however, gives equal or nearly equal circumstantial support to a theory of guilt and a theory of inn ocence, we m ust reverse the conviction, as under these circumstances ‘a reasonably jury must necessarily entertain a reasonable doubt.” United States v. Reveles , 190 F.3d 678, 686 (5th Cir. 1999) (quoting United States v. Lopez , 74 F.3d 575, 577 (5th Cir. 1996)). In order to convict Mireles of possession wit h int ent to distribute marijuana, the government had the burden of proving th ree elements at tri al: (1) knowing (2) possession of marijuana (3) with int ent to distribute it
. On appeal, Mireles challenges only the knowledge element of the offense. As a general rule, a jury may infer knowledge of the presence of drugs from the exercise of control of a vehicle containing such contraband. See United States v. Resio-Trejo , 45 F.3d 907, 911 (5th Cir.-7-

1995). When drugs are hidden from view in compartments, however, "this Court has normally requi red additional `circumstantial evidence that is suspicious in nature or demonstrates guilt y knowledge.'" Id. (quoting United States v. Anchondo-Sandoval , 91 0 F.2d 1234, 1236 (5th Cir. 1990)). This requirement stems from the recognition that, in hidden compartment cases, there "is at least a fair assumption th at a thir d party might have concealed the controlled substances in the vehicle wit h the int ent to use the unwitting defendant as the carrier in a smuggling enterprise." United States
v. Diaz-Carreon , 915 F.2d 951, 954 (5th Cir. 1990). This assumption is heightened when, as here, the vehicle was only in t he possession of the defendant for a short time. U nited States v. Ortega Reyna , 148 F.3d 540, 544 (5th Cir. 1998). On appeal, Mireles does not argue th at the evidence was insufficient to dem onstrate that he
was knowingly transpor ti ng some sort of illegal contraband in the two towed vehicles. Instead, Mireles contends th at the government failed to prove beyo nd a reasonable doubt th at Mireles knew he was transporting drugs. To prove possession with intent to distribute marijuana, it must be shown th at the defendant had knowledge th at he was transporting drugs, rather than another f orm of contraband. S ee Reveles , 190 F.3d at 687-88 n. 16 (5th Cir. 1999) (finding t hat even though evidence showed defendant knew he was transporting som ething illegal, knowledge of drugs not shown when shipment s could have easily invo lved other contraband goods); see also United States
v. Cartwright , 359 F.3d 281, 286 (3d Cir. 2004). In the instant case, the district court expressly inst ructed the jury th at to be found guilt y, Mireles had to know that he was trafficking in drugs. Therefore, the guilt y verdict presumably reflects a determ inat io n by the jury th at Mireles knew he was traf ficking drugs. In support of his argument, Mireles contends th at the government int roduced no evidence th at-8-

Mireles had any prior invo lvement in drug traf ficking, or th at he knew or associated wit h individuals invo lved in drug traf

ficking. Further, Mireles argues that there is no evidence that the routes driven, times traveled, or lo cations invo lved were notorious fo r drug traf ficking. Moreover, no evidence was presented that showed that Mi reles had ever seen or touched the bundles of marijuana or the
com partm ents that hid them in the two towed vehicles. However, contrary to at least one of Mireles’s contentions, the record does contain evidence th at the Falfurrias Checkpoint is known fo r drug traf ficking and smuggling of illegal aliens. Specifically, the Falfurrias border patrol agents testified that they frequently stopped vehicles transporting drugs and illegal aliens. Mireles himself had passed th rough the Falfurrias Checkpoint many times and was aware th at vehicles were regularly stopped there fo r drug trafficking. Further, Mireles testified th at he rode alo ng on patrol wit h BCSO Deputy Sheriff Morales. Consequently, the jury could have reasonably inferred he was familiar wit h the com mo n criminal activity of the area, namely drug trafficking and illegal alien smuggling. In cases finding insufficient evidence of knowledge of drugs, rather th an other contraband, courts have relied on the fact th at, given the facts of the particular case, th e def endant could have easily been smuggling another ty pe of cont raband. See, e.g., Reveles , 190 F.3d at 687-88 n. 16 (finding th at, because man giving defendant packages was invo lved in shipping ceramics, shipment s “easily could have invo lved” illegally-impo rted ceramics rather th an drugs); Cartwright , 359 F.3d at 287 (finding th at, because defendant was standing lo okout in a shopping mall, contraband in shopping bag could easily have been stolen jewels, com puter chips, currency, or other goods). Given the fact th at Mireles was towing vehicles across the Falfurrias Checkpoint, he could only have reasonably th ought he was smuggling eit her drugs or illegal aliens. However, on the August 28th stop, Mireles-9-

was towing a flat -bed pickup truck. The photographs in evidence show that the pickup truck did not appear to have a trunk or other compartment in which an illegal alien could have been hidden. As such, the jury could have reasonabl y inferred that Mireles knew that the vehicle towed on August 28th contained illegal drugs, rather than some other type of contraband. Fu rther, Mireles was present during the August 28th stop when the border patrol agents
remov ed the mari

juana from the pickup truck. He nevertheless again attempted to smuggle contraband across the Falfurrias Checkpoint on October 8th in a manner similar to the fir st incident. This removes any reasonable doubt th at Mireles believed he was transporting som e illegal contraband other th an drugs on October 8th. The fact that Mireles committed these two offenses in similar ways wit hin two mo nt hs of each other clearly supports a reasonable inference th at he knew he was traf ficking drugs. As such, there was sufficient evidence to support the j ury ’s determination that Mireles knowingly possessed the marijuana in question. Resio-Trejo , 45 F.3d at 911. III. Mireles also contends th at the provisions of 21 U.S.C. § § 841(a) and (b) are f acially unconstitutional under the rule of Apprendi v. New Jersey , 530 U.S. 466 (2000), to the extent that they rely on drug quantity and ty pe, facts not fo und by a jury, to increase a sentence with in the statutory range. As Mireles concedes, this argument is foreclosed by our holding in U nited States
v. Slaughter , 238 F.3d 580, 582 (5th Cir. 2000), cert. denied , 532 U.S. 1045, 121 S. Ct. 2015, 149 L. Ed. 2d 1015 (2001). Therefore, the argument fails. IV. Finally, Mireles argues that the "truck driving" special condition of his supervised release in the district court's written judgment mus t b e amended because it impermissibly conflicts with the-10-

"com mercial activit ies on highway" special condition contained in the oral pr onouncem ent of his sentence. Because Mireles “had no opportunity to object to or com ment on the special condition[ ]
. . . impo sed in the written order,” we “review the district court’s impo sit io n of [the] special condition[ ] fo r an abuse of discretion.” United States v. Warden , 291 F.3d 363, 365 n. 1 (5th Cir. 2002). Where there is an actual conflict between the district court’s oral pronouncement of sentence and the written judgment, the oral pronouncement control s. U nited States v. Wheeler , 322 F.3d 823, 828 (5th Cir. 2003); United States v. Moreci , 283 F.3d 293, 299-300 (5th Cir. 2002); United States v. Martinez , 250 F.3d 941, 942 (5th Cir. 2001). The key determination is whether the discrepancy between the oral pronouncement and the written judgment is a conflict or merely an ambiguity th at
can be resolved by reviewing the rest of the record. U nited States v. Torres-Aguilar , 352 F.3d 934, 9 35-36 (5th Cir. 2003). If the written judgment broadens the restrictions or requirement s of supervised release from an oral pronouncement, a conflict exists. See Wheeler , 322 F.3d at 828 (finding conflict where oral pronouncement required defendant to perform 120 hours of com munit y service within the first year of supervised release while written judgment required 125 hours within two years); Moreci , 283 F.3d at 299-300 (finding conflict where two -y ear difference in term of supervised release between written judgment and oral pronouncement). If a conflict exists, the appropri ate remedy is remand to the district court to amend the written judgment to conform to the oral sentence. Wheeler , 322 F.3d at 828 (citing Martinez , 250 F.3d at 942). During sentencing, the district court orally pronounced a special condition of Mireles’s supervised release that: in the event th at yo u are stopped on the highway while yo u’re engaged in com mercial-11-

activit ies as a truck driver or as a wrecker driver, yo u will advise the authorities th at yo ur are on Supervised Release fo r drug traf ficking and th at they may search yo ur car and your person. However, in the written judgment, the district court defined this special condition as: TRUCK DRIVING CONDITION: While on supervised release and engaged in truck driving eit her as the driver or a passenger, the defendant shall, upon arriving at a checkpoint, border crossing, weigh station, o r upon b eing stopped for an environmental or safety inspection, or traf fic vio lat io n, or upon any road side contact, declare to the of

ficer th at the defendant is on supervision for a drug related offense. Upon request, the defendant shall consent to a searc h of the tractor, trailer, its contents and his person. Mireles contends th at the written judgment confl ict s with the oral pronouncement of the special condition, broadening it s requirements in several respects. Mireles argues that, in the oral pronouncement, the special condition only applies to Mireles: (1) while he is engaged in com mercial truck driving; (2) as a driver; and (3) when he is driving on the highway. Mireles contends that the special condition in the written judgment applies to Mireles both: (1) while he is en gaged in
com mercial and non-commercial truck driving; (2) as a passenger and as a driver; and (3) when he is driving on and off the highway. The special condition contained in the oral pronouncement clearly only applies to Mi reles’s
com mercial truck driving activit ies. Mireles argues that because the written judgment does not contain the "engaged in com mercial activit ies" language fo und in the oral pronouncement, the special condition in the written judgment authorizes a search when law enforcement com es int o contact wit h Mireles while he is truck driving in a non-commercial capacity. Although the term "truck driving" in the written judgment is ambiguous in iso lat io n, when considered in the context of the entire record it is clearly m

eant to onl

y encompass commercial truck driving. The language of the oral pronouncement illust rates th at the district court included the "com mercial activit ies on highways"-12-

exception because it was "entirely possible [Mireles] might be engaged in truck driving or go back int o this business." The district court thus sought to prevent Mireles from again using his commercial truck driving activities as cover fo r drug traf ficking. Nothing in t he record suggests that the court
was at all concerned wit h regulating Mireles’s non-commercial activit ies. Therefore, the term "truck driving" in the written judgment only covers com mercial activit y. The written judgment, then, does not conflict with the oral pronouncement of the special condition in this regard. Mireles next argues th at alt hough the special condition in the oral pronouncement only applies when Mireles is a "truck driver" or a "wrecker driver," the condition in written judgment applies when Mireles is either a "driver or a passenger. Although the term “passenger” is not present in the oral pronouncement, we find th at this discrepancy is merely an ambiguit y th at can be resolved by lo oking to the int ent of the district court. As noted above, it is clear from the record o f t he oral pronouncement th at the district court sought to prevent Mireles from traf ficking drugs while engaged i n com mercial truck driving activit ies. It i s not uncommon in commercial truck driving fo r two drivers to be used to spell each other. Therefo re, when read in light of it s purpose, the special condition in the oral pronouncement also applies to Mireles both as a driver and as a passenger. Finally, Mireles contends th at the written judgment b roadens the speci al condition for supervised release because it does not restrict the reporting and consent to search requirements to highway truck driving. Although the oral pronouncement refers to it as the "com mercial activities
on highways" condition, the language should not be construed as narrowly as Mireles suggests. By necessity, a truck engaged in com mercial activit y must also travel on other streets to reach a highway. To give effect to the district court’s int ent, the condition in the oral pronouncement must be read to encompass this of

f-highway driving as well. Therefo re, we f ind t hat the oral and written-13-

pronouncements are also reconcilable in this respect. V. For the foregoing reasons, we AFFIRM.