IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-40717

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ANTONIO ESCOBAR,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:17-CR-529-1

Before WIENER, HAYNES, and COSTA, Circuit Judges.

PER CURIAM:*

Antonio Escobar was convicted by a jury of possessing cocaine with 

intent to distribute and sentenced to 120 months of imprisonment. On appeal, 

he contends that (1) the district court erroneously denied his motion to 

suppress evidence; (2) he was denied the right to present a complete defense; 

(3) the Government’s closing argument was prejudicially improper; and (4) the 

evidence was insufficient to prove his guilt. We affirm.

 

* 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

September 5, 2019

Lyle W. Cayce

Clerk

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2

Escobar fails to show that the district court erred in denying his motion 

to suppress the cocaine that Border Patrol agents discovered in his truck. See 

United States v. Lopez-Moreno, 420 F.3d 420, 429 (5th Cir. 2005). The lessthan-three-minute immigration stop was sufficiently brief under the Fourth 

Amendment, see United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976), 

and Escobar’s nervous and evasive behavior, unusual responses to lawful 

questions, and provision of a suspicious bill of lading gave agents sufficient 

reasonable suspicion to extend the stop, see United States v. Ventura, 447 F.3d 

375, 378 (5th Cir. 2006). Rodriguez v. United States, 135 S. Ct. 1609 (2015), 

does not alter this calculus. See United States v. Tello, 924 F.3d 782, 785-89 

(5th Cir. 2019).

We review Escobar’s unpreserved right-to-present-a-defense argument 

for plain error. See United States v. Gibson, 875 F.3d 179, 193 (5th Cir. 2017); 

United States v. Snarr, 704 F.3d 368, 382 (5th Cir. 2013). He cannot show 

plain constitutional error because he fails to address whether the alleged error 

by the district court seriously affects the fairness, integrity or public reputation 

of judicial proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009); 

United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013). In any 

event, Escobar fails to show that the court clearly or obviously violated his 

right to present a defense. See United States v. Kuhrt, 788 F.3d 403, 421 (5th 

Cir. 2015); Puckett, 556 U.S. at 129. The jury already knew Villanueva had 

driven the truck immediately before Escobar. And the court did not prohibit 

Escobar from introducing Villanueva’s prior conviction or calling Garcia to 

elicit his false initial statements. To the extent that he raises a preserved 

challenge to the evidentiary ruling, any error was harmless. See United States 

v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011).

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Escobar likewise fails to show that the prosecutor’s single erroneous 

recitation of the Government’s burden of persuasion on the knowledge element 

of a 21 U.S.C. § 841 offense affected his substantial rights. See United States 

v. Gracia, 522 F.3d 597, 599 (5th Cir. 2008); Puckett, 556 U.S. at 129. Given 

the isolated nature of the remark in an otherwise unobjectionable closing

argument, the district court’s curative jury instruction, and the strength of the 

evidence of guilty knowledge, the prosecutor’s singular comment did not cast 

serious doubt on the correctness of the jury’s verdict. See Gracia, 522 F.3d at 

603; Houston v. Estelle, 569 F.2d 372, 383 (5th Cir. 1978).

Finally, as Escobar concedes, his contention that the evidence was

insufficient to convict him under § 841 because the Government failed to prove 

that he knew the specific type or quantity of drugs in his possession is 

foreclosed. See United States v. Betancourt, 586 F.3d 303, 308-09 (5th Cir. 

2009); United States v. Gamez-Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003).

The judgment is AFFIRMED.

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