* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-41221

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO ALBERTO VILLARREAL,

Defendant-Appellant.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. V-01-CR-22-ALL

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

June 20, 2002

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Mario Alberto Villarreal appeals his conviction for

possession with intent to distribute more than 1,000 kilograms of

marijuana. Villarreal challenges the sufficiency of the

evidence. He asserts that the Government did not prove that he

had knowledge of the marijuana that was hidden by produce in the

trailer of the truck that he was driving from Texas to New York.

Villarreal also asserts that we should review his

sufficiency challenge under the “rationality” standard of review
No. 01-41221

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rather than for “plain error.” He contends that his not-guilty

plea should serve as a motion for judgment of acquittal.

Villarreal concedes that he did not move for a judgment of

acquittal at the close of the Government’s case or at the close

of the evidence. Circuit precedent thus requires that we

restrict our review to whether Villarreal’s conviction resulted

in a “manifest miscarriage of justice.” United States v. Smith,

203 F.3d 884, 887 (5th Cir. 2000). A manifest miscarriage of

justice exists only if the record “is devoid of evidence pointing

to guilt or if the evidence on a key element of the offense is so

tenuous that a conviction would be shocking.” Id.

A conviction for possession with intent to distribute

marijuana “requires proof that the defendant (1) knowingly

(2) possessed marijuana (3) with intent to distribute it.” 

United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996)

(citation omitted). Possession may be shown by direct or

circumstantial evidence. United States v. Brown, 29 F.3d 953,

958 (5th Cir. 1994). The intent to distribute may be inferred

from possession of a quantity of drugs that is too large for any

purpose other than distribution. See United States v. Sanchez,

961 F.2d 1169, 1176 (5th Cir. 1992). 

The parties stipulated that marijuana was discovered in the

trailer that Villarreal was driving. It is not disputed that

after the truck was loaded, Villarreal was the sole person in the

truck, that he had sole control of the key that unlocked the
No. 01-41221

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trailer doors, and that the trailer contained a net weight of

1,036 kilograms of marijuana. 

In a case such as this one, knowledge cannot be inferred

solely from the fact that the defendant had control over the

vehicle. See United States v. Resio-Trejo, 45 F.3d 907, 911 (5th

Cir. 1995) (citation omitted). Additional circumstantial

evidence was necessary to establish guilty knowledge. See id.

Such evidence may include implausible explanations and

inconsistent or contradictory statements. See id.

The truck was empty prior to the loading of the produce, the

loading dock was too busy for anyone to conceal a large quantity

of marijuana, and the loading took place in daylight under

supervision. The truck did not remain at the loading dock long

enough for someone to place over 1,000 kilograms of marijuana on

the truck.

Villarreal testified that he personally locked the trailer

doors after the truck was loaded, he kept the key on his person,

no one could have gotten the key while he was napping, and no one

could have opened the trailer without the key. Villarreal’s

account at trial of the twelve hours that passed from loading

until the traffic stop conflicted with his account as provided by

the Government’s witness. Villarreal provided no explanation for

the time discrepancies.

The produce had been loaded evenly; yet, it was not even

when Villarreal was stopped, and Villarreal offered no
No. 01-41221

-4-

explanation for the difference. Villarreal testified that he was

personally responsible for the condition of the load; yet, he

testified that he did not inspect it. Villarreal was driving a

load of perishables, for which he was responsible, from Texas to

New York, but he had no concern for the time that elapsed during

his route.

The record is not devoid of evidence pointing to guilt, and

the evidence on Villarreal’s knowledge of the marijuana is not so

tenuous that a conviction would be shocking. See Smith, 203 F.3d

at 887. The district court’s judgment is AFFIRMED.