* 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this opinion should not be published and is not precedent except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

June 8, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40958

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KERRY KIRKPATRICK,

Defendant-Appellants.

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

On Appeal of the United States District Court

for the Southern District of Texas

USDC No. 1:04-CR-236-1

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

Before HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

A jury convicted Kerry Kirkpatrick of four counts stemming

from his attempt to truck about 100 kilograms of marijuana across

the border. Kirkpatrick challenges his conviction on five

grounds and his sentence on two.

First, Kirkpatrick argues insufficient evidence that he

knowingly possessed the drugs, an element of all four counts.

Viewing the evidence in the light most favorable to the verdict,

see United States v. Gutierrez-Farias, 294 F.3d 657, 659-60 (5th
No. 05-40958

-2-

Cir. 2002), to determine whether a rational trier of fact could

have found guilt beyond a reasonable doubt, United States v.

Bellew, 369 F.3d 450, 452 (5th Cir. 2004), we disagree. Although

the drugs were in a hidden compartment, necessitating evidence

aside from Kirkpatrick’s control of the truck, see United States

v. Diaz-Carreon, 915 F.2d 951, 954 (5th Cir. 1990), such evidence

exists here: the record shows Kirkpatrick was nervous and made

inconsistent, implausible, and untrue statements, and the sheer

circumstances of his flying down to Brownsville to drive a truck

across the border the same day for $500 or $1000 cash are

telling. See United States v. Martinez-Lugo, 411 F.3d 597, 599

(5th Cir. 2005). And his own admissions that he had his

“hunches, but...needed the money” and that “[he] can’t tell you

[he] didn’t think that [that he might be importing drugs], but

[he] didn’t want to believe it,” are a classic case of “willful

blindness,” from which a jury can infer knowledge. See United

States v. Scott, 159 F.3d 916, 922 (5th Cir. 1998). The evidence

overwhelms.

Second, Kirkpatrick suggests that the district court should

sua sponte have suppressed his statements to Investigator McLuhan

because Kirkpatrick made them while tired, rendering them

unreliable. Because he failed to object below, we review for

plain error. See United States v. Olano, 507 U.S. 725, 732-34

(1993). Because the only cases cited by Kirkpatrick, e.g.,

Miller v. Fenton, 474 U.S. 104 (1985); Richie v. Mullin, 417 F.3d
No. 05-40958

-3-

1117 (10th Cir. 2005), are inapposite, and we see basis for the

claim, there was no error.

Third, Kirkpatrick argues that the district court erred in

overruling his motion to strike McLuhan’s statement regarding

Kirkpatrick’s drug use, elicited by Kirkpatrick’s own attorney

during cross examination when trying to note that Kirkpatrick did

not drink alcohol, requiring a new trial. The ruling was far

from an abuse of discretion, see United States v. Saldana, 427

F.3d 298, 306 (5th Cir. 2005), especially since Kirkpatrick

opened the door.

Fourth, Kirkpatrick claims the prosecutor misstated the

evidence during closing argument, or possibly opening argument,

specifically that Kirkpatrick did not know the last name of the

person who hired him to drive the truck and that the truck’s

title was not in the truck. Because he failed to object below,

we review for plain error. See Olano, 507 U.S. at 732-34. 

Although it is possible, albeit difficult, to read the record as

containing these misstatements, given the overwhelming evidence

and the entirety of the case, they did not affect his substantial

rights. See Olano, 507 U.S. at 732-34.

Fifth, Kirkpatrick contends the prosecutor’s statement

during closing argument that Kirkpatrick was “in on the deal”

unfairly implies that Kirkpatrick had been dealing dope on other

occasions, unsupported by the record. Because he failed to

object below, we review for plain error. See Olano, 507 U.S. at
No. 05-40958

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732-34. There was no error. The record shows that the

prosecutor was speaking only of the transaction at issue.

Consequently, Kirkpatrick’s convictions are AFFIRMED.

Kirkpatrick also challenges his sentence. The district

court, sentencing shortly after Booker, misread that case’s

remedial holding in calculating a Guidelines range of 70-87

months. At the Government’s suggestion, the court “upwardly

departed” and sentenced Kirkpatrick to 97 months. More than a

month later, with the aid of our first opinion construing Booker,

United States v. Mares, 402 F.3d 511 (5th Cir. 2005), the court,

in a “continuation...of sentencing,” “re-sentenced” Kirkpatrick

to 105 months, using the proper Guidelines range of 100-125

months. Kirkpatrick now argues both that double jeopardy forbids

the second, increased sentence, hence the 97-month sentence

should be reinstated, and that the court erred in upwardly

departing without notice during the first sentencing, mandating

remand for resentencing, presumably with a 97-month cap. The

Government concedes that the second sentence was error under

Federal Rule of Criminal Procedure 35(a), requiring remand for

resentencing, without a cap. Kirkpatrick replies that remand for

resentencing is proper, without mentioning a cap.

Under Rule 35(a), a district court has seven days to correct

sentence, after which it lacks jurisdiction to resentence. See

United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1999). 

Thus, the 105-month sentence here is invalid. Furthermore, the
No. 05-40958

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original, 97-month sentence was predicated on Booker error, hence

we VACATE it, not “reinstate” it, and REMAND for resentencing. 

Double jeopardy poses no bar to or cap on resentencing, even

though Kirkpatrick has served part of his sentence. See Stuckey

v. Stynchcombe, 614 F.2d 75, 76 (5th Cir. 1980). 

CONVICTIONS AFFIRMED; SENTENCE VACATED; REMANDED FOR

RESENTENCING.