### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40064

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. JOSE VIELMA-GARCIA; JESUS GONZALEZ-HINOJOSA, Defendants-Appellants

Appeals from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-284-1

Before SMITH, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: * Defendants J ose Vielma-Garcia (“Vielma”) a nd Jesus G onzalez-Hinojosa (“Gonzalez”), t imely appeal their convictions, arising out o f the same set of facts, for (1) conspiring to possess with intent to distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and (2) possessing marijuana w ith intent to distribute i n violation of 21 U.S.C. § 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. D efendants challen g e t h e conspiracy and possession convictions as s u p p o rt e d b y insufficient evidence and on the basis U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly17, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40064 Document: 00512311213 Page: 1 Date Filed: 07/17/2013No. 12-40064

of an alternate juror’s alleged participation in the d eliberations. Gonzalez also appeals t h e six-level sentencing enhancement imposed u nder U nited States Sentencing Guidelines Manual (“U.S.S.G.”) § 3A1.2(c)(1) (2011). We AFFIRM. I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Acting on information that marijuana was b eing stored at a r anch, Border Patrol agents s e t u p surveillance around the perimeter of the ranch. Agents testified that they observed a white pickup truck containing three in d i v i d uals approach a secondary gate, and an individual—later identified as Vielma—exit the truck, unlock and open the gate to allow the truck through, a nd then secure the gate and return to the truck. The gate was secured by a combination lock. Other agents then observed Defendants walking in a southwesterly dire c tion toward a marijuana pile. Defendants were eight to ten yards away from the pile when agents began their pursuit. O n e a g e n t p u rsued Vielma on foot until he got caught in a barbed wire fen c e where h e was apprehended. Another agent c hased Gonzalez into a thick brush where a scuffle ensued before the a gent received assistance and handcuffed Gonzalez. The agents u ltimately discovered a t otal o f four separate piles of marijuana (6,024 pounds) wo rth approximately $5,000,000 hidden on the ranch. Defendants s pontaneously told a gents that they were illegal aliens trying to make their way to Houston. Once in custody, Gonzalez also yelled to Vielma i n S p a n i sh to tell the agents that they were illegal aliens trying to make t h e i r way to Houston. Defendants were charged with conspiracy t o p ossess and possession with intent to distribute 1,000 kilograms or more of marijuana. Defendants pled not guilty to both counts and proceeded to trial by jury. At trial , a g e nt s t e s tif

i e d b a s e d o n training and experience that Defendants’ actions were inconsistent w ith those of undocumented immigrants trying to make their way to s a fer locations north of the b order. While such i mmigrants

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typically conceal themselves in vehicles and g et dropped off ten to fifteen miles south of b order checkpoints, the ranch was s ixty miles from the closest checkpoint. S u ch immigrants also typically pack c old-weather clothing and food for their journeys; however, D efendants w ere wearing jeans and shirts and had no other clothing or supplies. Defendants were not a ccompanied b y a guide or

a large group , w h i c h is also atypical of u ndocumented immigrants. Moreover, Def e n d a n t s were headed s outh when they were apprehended, the opposite direction from Houston. To further r ebut Defendants’ version o f t h e e vents, the G overnment showed that Vielma’s wife and children l ive in a home six miles from the ranch. Vielma is m arried to Gonzalez’s sister, and Gonzalez’s parents live in a trailer next door to the home. The jury also heard testimony that Vielma’s uncle owned the marijuana and that Defendants were there to take inventory. F i n ally, the Government offered evidence of Defendants’ previous marijuana convictions to s h ow intent, knowledge, preparation, common scheme

or plan, a n d a b s e n c e o f mistake. The jury found D efendants guilty on both counts of the indictment. At the sentencing h earing, the agent w ho apprehended Gonzalez testified that, aft e r pursuing Gonzalez into an area of thorny brush, he attempted to handcuff Gonzalez, and Gonzalez tried t o s h rug the agent off of him. The struggle continued until another agent c ame t o the f irst agent’s assistance and the two were able to handcuff Gonzalez. The district c o urt found sufficient evidence to apply the Official Vict i m Enhancement to G o nzalez’s b ase offense level, which increased it by six levels. See U.S.S.G. § 3A1.2(c)(1). The district court s entenced Vielma t o serve two concurrent 240-month terms of imprisonment followed by c o n c u rrent t en-year terms o f supervised release. The district court sentenced Gonzalez to s e rv e two concurrent 235- month terms of imprisonment followed b y concurrent five-year terms o f

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supervised r elease. The court denied Defendants’ m o t i o n f o r a judgment of acquittal. Both Defendants a ppeal their convictions; only Gonzalez a ppeals his sentence. II. DISCUSSION A. Sufficiency of the Evidence We review Defendants’ contention that the jury convicted them upon the basis of insufficient evidence de novo, i n the l ight most favorable to the verdict. United States v. Winkler , 639 F.3d 6 92, 696 (5th Cir. 2011). “ [ T ] h e relevant question is whether, a fter viewing the evidence in the light most favorable to the prosecution, any rational t rier of fact could have found the essential elements of the crime beyond a reasonable d o u b t

. ” Jackson v. V irginia , 443 U .S. 307, 319 (1979). Importantly, although the G overnment “must d o more than pile inference upon inference,” United S t a t e s v. W illiams-Hendricks , 805 F.2d 496, 502 (5th Cir. 1 986) (quotation marks o mitted), “[t]he evidence need not exclude every r easonable hypothesis of innoce n c e or be wholly inconsistent with every conclusion except that of guilt.” United States v. Moreno , 185 F.3d 465, 4 71 (5th Cir. 1999). D e f endants chall e n ge th e k n o w l e d ge a n d vo l u nt ary p arti c i p ati o n e l e m e nt s of their conspiracy convictions. See§§ 841(a)(1), 846; s ee also United States v. Ochoa , 667 F.3d 643, 648 (5th Cir. 2012) (“To es t a b l i s h a conspiracy, the government must prove t h at: (1) an agreement existed between two or more persons to violate federal n arcotics law, (2) the defendant knew of the existence of the agreement, a nd (3) the defendant voluntarily par t i c i p a t ed in the conspiracy.”). 1

1 Both counts required p roof of m ore than 1, 000 k ilogram s of m arijuana. The p arties s tip ulated that the subs tance s eized w as m arijuana. The am ount recovered

— 6, 024 p ound s

— is equivalent to ap p roxim ately 2, 700 k ilogram s . 4 Case: 12-40064 Document: 00512311213 Page: 4 Date Filed: 07/17/2013No. 12-40064

“Circumstantial evidence may establish the existence o f a conspiracy, as well as an individu a l ’ s voluntary p articipation in it, and ‘[c]ircumstances altogether inconclusive, if s eparately considered, may, by their number a nd joint operation

. . . be sufficient t o constitute conclusive proof.’” Uni t e d States v. Garcia Abrego , 1 41 F.3d 142, 1 5 5 (5th C ir. 1998) (alterations in original) (citation omitted). While “[p]roo f o f t h e mere presence o f the defendant at a

scene of crimin a l activity a nd h is a ssociation with the other d efendants is insufficient to support a criminal conviction[,]

. . . ‘ [ a ] j u ry may find k n o w l e d geable, voluntary p articipation from presence when the presenc e i s s u c h th at it w o u l d be unreasonable for anyone other than a knowledgeable p arti c i p a nt to be present.’” United States v. Paul , 142 F.3d 836, 840 (5th C i r . 1 9 9 8 ) (last alteration in original) (citations omitted). The proffered evidence was sufficient. See Jackson, 443 U.S. a t 3 19

. The jury heard testimony that Defen d a n ts entered a r emote and h ighly-secured ranch containing a large quantity of marijuana through a locked gate to which

one h ad the code and proceeded directly towards the mariju a n a . T he jury reasonably disbelieved Defendants’ theory o f innocence and concluded that they

were knowing, voluntary participants i n a drug - t r a f f i cking conspiracy. The totality of the evidence presented allowed a jury to “find knowledgeable, voluntary participation” because it tended t o s h o w “that it w ould be unreasonable for anyone other than a knowledgeable participant to b e p resent.” See Paul , 142 F.3d at 840. Defendants further contend that th e evidence was insufficient to support the knowledge element of their possession convictions. See 21 U.S.C. § 841(a)(1);

see also United States v. Patino-Prado , 533 F.3d 304, 309 (5th Cir. 2008) (“The essential elements of a violation of Section 841(a)(1) include: (1) k nowledge, (2) possession, and (3) intent to distribute the controlled substance.”).

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The same evidence offered in support of the preceding conspiracy analysis easily defeats this argument. Agents discovered $5,000,000 worth of marijuana

on the ranch. W e have held that a large amount of drugs is o ne factor demonstrating knowledge. United States v. V illarreal , 324 F

. 3 d 319, 324 (5th Cir. 2 003). F urther, jurors could reasonably i n fer knowledge from Defendants’ incredulous explanation f o r their presence on the ranch. See United States v. Diaz-Carreon , 915 F.2d 951, 955 (5th Cir. 1990). Though Defendants “offered an alternative theory to explain their arrest, the jury chose to believe the t estimony of the government’s witnesses and reasonably concluded that [Defendants] had, beyond a reasonable doubt,” committed the charged offenses. See United States

v. Guanespen

- Portillo , 5 14 F .3d 393, 3 97 (5th Cir. 2008). Accordingly, we conclude that s ufficient evidence existed for a jury to convict Defendants on both counts of the indictment. B. Alternate Juror Deliberations Defendants n ext allege that the district court committed reversible plain

e r ror by allowing a n a lternate juror t o participate in j uror deliberations in contravention of Federal Ru l e o f Criminal Procedure 24(c)(3). 2 Because Defend a n t s did not raise this objection before the district c ourt, we c onsider it only for plain e rror. United States v. Olano , 507 U.S. 725, 735-36 (1993). Plainerror review consists of four prongs: First , there must be an error or defect—some sort of ‘[d]eviation from a legal rule’—that has not been intentionally relinquished or a b a n d o n e d

. . . . Second, the legal error must be clear or obvious, rather than subject to reasonable di spute. Third, the error must have a f f e c t e d the appellant’s substantial rights, which in th e ordinary case m eans he must demonstrate that it ‘affected th e

2 T h e rule p rovid es : “The court m ay retain alternate jurors af ter the jury ret i r e s t o d e l i b e r a t e . The court m us t ens ure that a retained alternate d oes not d is cus s the cas e w ith anyone until that alternate rep laces a juror or is d is charged

. If an alternate rep laces a juror af ter d eliberations have begun, the court m u s t i n s t ruct the jury to begin its d eliberations anew . ” F ed

. R. C rim

. P. 24( c) (3)

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outcome o f the d i strict court proceedings.’ Fourth

. . . if the above three prongs a re satisfied, the court of appeals has the d iscretion to remedy the error—discretion which ought to be e xercised o nly if th e error ‘“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’” Puckett v. United States , 556 U.S. 129, 135 (2009) (some a lterations in original) (citations omitted). “The defendant bears the burden of demonstrating that a plain error affects h i s substantial rights.” United States v. Gonzalez-Rodriguez , 621 F.3d 354, 363 (5th Cir. 2010). Defendants point to no r ecord evidence t h a t d e m o nstrates that the alternate juror actually participated in th e d eliberations. The only evidence offered in support of this contention is t h e court’s instruction to the jurors to “retire to the j ury r oom to begin [their] deliberations” without an on-the-record discharge o f the alternate. Without record citation o r support, Vielma contends that “[a]fter this instruction, all thirteen j u r o rs, including the alternate juror, exited to the jury room and deliberated.” While a n on- th e - r e c ord discharge would be preferable, the record does not demonstrate that the alternate juror actually deliberated rather than b eing released or retained in a separate location by the court off the record. Even assuming the existence of a n e rror, Defendants h ave n o t s a t i sfied the i r b u r d e n to prove that any error affected their substantial rights. See Puckett , 556 U.S. at 135; see also Ola n o , 5 0 7 U

. S

. at 737 (“The p r esence of alternate jurors during jury deliberations is n ot the kind of error that ‘ affect[s] substantial rights’ i ndependent of its prejudicial i mpact.” (alteration in original)). We thus discern no plain error concerning the j ury’s deliberations. C. Sentencing Enhancement Finally, Gonzalez challenges one aspect of his sentence. He asserts that t h e d i strict court erred in applying the enhancement under U.S.S.G. § 3A1.2(c)(1) which states:

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(c) If, in a manner creating substantial risk of serious bodily injury, the defendant or a person for whose conduct the defendant is otherwise accountable— (1) knowing or having r easonable c a u s e to b elieve that a person was a law enforcement officer, assa u l t e d such officer during the course of the o ffense or immediate flight therefrom

. . . increase by 6 levels. We review the district court’s interpretation of the Sentencing Guidelines de novo, a nd its factual findings for clear error. United States v. Serfass , 684 F.3d 548, 550 (5th Cir.), cert. denied , 133 S. Ct. 623 (2012). “A finding of fact i s clearly

erroneous only if, after reviewing all the evidence, w e a r e l e f t w i th the definite and firm conviction that a mistake has been committed.” Id. (internal quotation marks o m itted). The district court considered and adopted the P r e - s e ntence Investigation Report and heard c onflicting evidence regardin g t h e events surrounding Gonzalez’s apprehension by the Border Patrol agents. The district court c o n c l uded—with ample evidentiary support—that Gonzalez was “shrugging” off the officer and then “ struggling” with the officer in a pile of thorny branches that included “long thorns of mesquite an d such” that were “almost 2 inches long” by Gonzalez’s o wn a d m ission. Against this backdrop, the district court’s implicit conclus ion that the facts surrounding the s truggle met the requirements of the enhancement was not clearly erroneous. AFFIRMED.

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