* 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this opinion should not be published and is not precedent except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 5, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10732

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ALBERTO LOZANO,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:03-CR-327-ALL-Y

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

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Alberto Lozano appeals his conviction following a jury

trial of possession with the intent to distribute more than 100

kilograms of marijuana, in violation of 21 U.S.C. § 841. We

affirm.

Lozano first argues that the evidence was insufficient to

support his conviction because there was insufficient evidence of

his guilty knowledge. 
No. 04-10732

-2-

1See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

21 U.S.C. § 841(a)

2United States v. Villarreal, 324 F.3d 319, 324 (5th Cir.

2003). 

3See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th

Cir. 1998).

Viewing the evidence in the light most favorable to the

prosecution, there was sufficient evidence from which a

reasonable jury could infer that Lozano knew about the marijuana

hidden in his tractor-trailer.1 The Government presented ample

circumstantial evidence, aside from his control of the trailer in

which the drugs were found, of guilty knowledge. Dole employees

testified that Lozano’s cargo was loaded in the normal manner,

establishing both that Lozano had observed the loading of the

cargo in his trailer and that the cargo had been tampered with

after loading. Trooper Forrest testified that Lozano was nervous

when stopped, had an unusually nonchalant reaction to the

disarray of his cargo, denied having let the trailer out of his

sight after leaving Dole, and had inexplicable inconsistencies in

his log book entries, including an unaccounted-for 18-hour delay

after taking on perishable cargo. Additionally, testimony

established that the marijuana had a high street value, in excess

of $400,000, a fact from which the jury could infer Lozano’s

knowledgeable involvement in a drug-trafficking scheme.2

Considered together, this testimony provided sufficient

circumstantial evidence of Lozano’s guilty knowledge.3
No. 04-10732

-3-

4426 U.S. 610 (1976).

5FED. R. CRIM. P. 52(b); United States v. Olano, 507 U.S. 725,

732 (1993).

6Olano, 507 U.S. at 734.

Lozano next contends that statements at trial made by

Trooper Forrest, Officer Malugani, and the prosecutor improperly

commented on his pre- and post-arrest silence, in violation of

his Fifth Amendment rights and Doyle v. Ohio.

4 Because he did

not object to these statements below, we review for plain error.5

Assuming without deciding that there was error here, Lozano has

not established plain error because has not shown that the error

affected his substantial rights. Given the abundant evidence of

his guilt and the indirect nature of the comments about his

silence, he cannot show that the comments “affected the outcome

of the district court proceedings.”6

Lozano additionally contends, also for the first time on

appeal, that the prosecutor, by using the pronoun “we” to refer

to the entirety of the Government’s case during closing argument,

impermissibly vouched for the credibility of its witnesses. He

further argues that the prosecutor improperly referred to the

cost of prosecuting him and impermissibly attempted to shift the

burden of proof to him during closing argument.

The record demonstrates that Lozano has misconstrued the

prosecutor’s arguments and that none of the statements about

which Lozano complains, when taken in context, were improper. 
No. 04-10732

-4-

7See United States v. Ramirez- Velasquez, 322 F.3d 868, 875

(5th Cir.), cert. denied, 540 U.S. 840 (2003).

Moreover, even if the prosecutor’s remarks were improper, Lozano

cannot establish plain error. His substantial rights were not

affected because the evidence of guilt was overwhelming and

because the district court’s instructions that the statements,

objections, and arguments made by the lawyers are not evidence,

coupled with its instruction that the jury consider only the

evidence, were sufficient to cure any prejudice.7

The district court’s judgment is AFFIRMED.