IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40843

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ESEQUIEL AVILA-BUJANOS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:10-CR-985

Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Esequiel Avila-Bujanos appeals his conviction for possessing with intent

to distribute more than 500 grams of cocaine, arguing that the evidence was

insufficient to support the jury’s verdict and that the prosecutor made improper

remarks during closing argument. At trial, the evidence showed that AvilaBujanos was caught at a border control checkpoint with cocaine secreted in the

lining of a suitcase. His defense was that he did not know the suitcase contained

United States Court of Appeals

Fifth Circuit

F I L E D

August 9, 2012

Lyle W. Cayce

Clerk

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.

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No. 11-40843

drugs and that he was deceived by an unidentified individual who was allegedly

going to pay him for transporting the suitcase to Houston, Texas.

Sufficiency of the Evidence

Avila-Bujanos challenges whether theGovernment sufficiently proved that

he had knowledge of the cocaine hidden behind the lining of his suitcase.

Because Avila-Bujanos preserved his sufficiency challenge by moving for

judgment of acquittal at the close of both the Government’s case and all the

evidence, we review the denial of his motion de novo. United States v.

Mudekunye, 646 F.3d 281, 285 (5th Cir. 2011). We will uphold the jury’s verdict

if a reasonable trier of fact could conclude from the evidence that the

Government established all elements of the offense beyond a reasonable doubt.

Id. We view the evidence and draw all reasonable inferences in the light most

favorable to the verdict. Id. “The evidence need not exclude every reasonable

hypothesis of innocence or be wholly inconsistent with every conclusion except

that of guilt, and the jury is free to choose among reasonable constructions of the

evidence.” United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999) (quoting

United States v. Burton, 126 F.3d 666, 669–70 (5th Cir. 1997)).

The Government presented evidence that after he was caught, AvilaBujanos changed his version of how he came to possess the suitcase, admitted

that his story was difficult to believe, and told federal agents that he was first

offered $200 to transport the suitcase but convinced the person who gave it to

him to pay him twice that amount. Moreover, the concealed 3,394 grams of

cocaine had a street value of approximately $300,000. This evidence constituted

circumstantial evidence of knowledge from which the jury could reasonably have

reached a conclusion of guilt. See United States v. Villarreal, 324 F.3d 319,

324–25 (5th Cir. 2003) (explaining that a jury can reasonably infer knowledge

based on the high value of the drugs being transported); United States v.

Ortega-Reyna, 148 F.3d 540, 544 (5th Cir. 1998) (noting that inconsistent

statements and implausible explanations are among the types of behavior

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recognized as circumstantial evidence of guilty knowledge). Although AvilaBujanos offered evidence that an accident in 1997 might have led to a decrease

in his mental acuity and that he scored low on IQ and other intelligence tests,

the jury was not required to accept the theory that Avila-Bujanos could not have

known that the suitcase he was carrying contained drugs due to his diminished

mental state. It was free to choose among reasonable constructions of the

evidence and reject his defense. See Mudekunye, 646 F.3d at 285.

Prosecutorial Misconduct

Avila-Bujanos also challenges several remarks made during the

prosecutor’s closing argument that Avila-Bujanos was “smart enough” to open

a bank account and manage his own money, suggesting that he was smart

enough to infer that the bag he agreed to carry contained drugs. While his sister

testified that Avila-Bujanos had his own bank account and that he cashed his

own disability checks, there was no specific evidence that he was the individual

who actually opened the bank account as stated by the prosecutor. AvilaBujanos’s sister also testified that his mother at least assisted in managing his

money by giving him an allowance out of the disability checks. Avila-Bujanos

contends that the statements by the prosecutor therefore were not supported by

the evidence and constituted misconduct affecting his substantial rights and the

fairness of the trial.

Because he did not object to the remarks during closing argument, our

review is for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). To

prevail, Avila-Bujanos must show there was an error that was clear or obvious

and that it affected his substantial rights. Id. If he makes this showing, this

court has the discretion to correct the error, but only if it seriously affected the

fairness, integrity, or public reputation of the judicial proceedings. Id. During

closing argument, the prosecutor may only discuss the evidence that was

admitted and any inferences or conclusions that can reasonably be drawn from

the evidence. United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008). He

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“may not directly refer to or even allude to evidence that was not adduced at

trial.” Id. (internal quotation marks and citation omitted).

Viewed in the context of the entire closing argument and of all the

evidence, the prosecutor’s remarks, to the extent that they were erroneous, did

not affect Avila-Bujanos’s substantial rights. See United States v. Aguilar, 645

F.3d 319, 325–26 (5th Cir. 2011) (explaining that the court should consider the

potential magnitude of any prejudice of improper comments, whether cautionary

jury instructions were provided, and the relative strength of the other

inculpatory evidence); United States v. Gracia, 522 F.3d 597, 602–03 (5th Cir.

2008) (stating that the prosecutor’s remarks are considered in the context of the

evidence offered). While the prosecutor’s statements were perhaps not entirely

correct, the evidence showed that Avila-Bujanos had managed to live both on his

own and with roommates and that he also had a girlfriend, which the prosecutor

argued meant that Avila-Bujanos’s mental capacity and ability to manage his

personal affairs were not as limited as the defense contended. Moreover, during

both cross-examination and closing argument, the prosecutor called into

question the reliability of the intelligence tests administered to Avila-Bujanos

to challenge the defense that his mental limitations played a role in being

deceived by an unidentified individual asking him to transport the suitcase. The

prosecutor also relied on testimony that Avila-Bujanos’s statements to agents

were inconsistent, his admission that he was able to convince the drug smuggler

to pay a higher fee than that originally offered, and evidence that he was

entrusted with valuable cargo to support an argument of guilt. Finally, the

district court provided a cautionary jury instruction reminding jurors that the

statements of the attorneys are not evidence. Given this context, the remarks

that Avila-Bujanos complains of do not “cast serious doubt on the correctness of

the jury’s verdict.” Gracia, 522 F.3d at 603 (internal quotation marks and

citation omitted).

The judgment of the district court is AFFIRMED.

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