### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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, argui n g th at the evidence was insufficient to support the jury’s verdict and that the prosecutor made improper remarks during closing argument. At trial, the evidence sho w ed 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 9, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40843 Document: 00511951670 Page: 1 Date Filed: 08/09/2012No. 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 A vil a - Bu janos ch all en ge s wh eth er the Govern m e nt s uf f icie ntly p rove d th at he had knowledge of the cocaine hidde n b e h i n d the lining of his suitcase. B e c a use Avila-Bujanos preserved his sufficiency challenge by moving f o r judgment of acquittal at the close of both th e 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 th at th e Government established all elements of the offense beyond a reasonable doubt. Id. We view the evidence and draw all reasonable inferences i n the light most favorable to the verdic t

. I d. “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 af t e r he was caught, AvilaBujanos changed hi s v e r s ion 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 convi n c e d the person who gave it to him to pay him twice that amount. Moreover, the c o ncealed 3,394 grams of cocaine had a street value of approximately $300,000. This evidence constituted circu mstantial 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

–2 5 ( 5 th Cir. 2003) (explaining that a jury can reasonably infer knowledge b a sed 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 o f b e h avior
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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 I Q 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 stat e . I t w a s 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 challen g e s several remarks made during the prosecutor’s closing argument that Avila-Bujanos was “ s m art enough” to open
a bank account and manage his own money, suggesting that he w a s 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 h e c a s h e d his

own disability checks, there was no specific evidence that he was the individual who actually opened the bank account as stated by the pr o s e cutor. AvilaBujanos’s sister also testified that his mother at least assisted in managing his

mone y b y 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. B e c a u s e he did not object to the remarks during closing argument, o u r 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 af

f ected 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, i nt e grity, or public reputation of the judicial proceedings. Id

. During closing argument, the p r o s e cutor 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 , 52 2 F

. 3 d 4 8 2 , 491 (5th Cir. 2008). He
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“may n o t dir e c tly refer to or even allude to evidence that was not adduced at trial.” Id . (internal quotation marks and citation omitted). Viewed i n th e c ontext 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 magnitu de of any p re j u dice of improper comments, whether cautionary jury instructions were provided, a n d the relative strength of the other inculpatory evidence); United States v. Gracia , 522 F.3d 597, 6 0 2

–0 3 (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-examinatio n a nd closing argument, the prosecutor called into question the reliability of the intelligence tests administered to Avila-Bujanos to challenge the defense that h i s m ental 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 t o a g e nts

were inconsistent, his admission that he was able to convince the drug smuggler to pay a higher fee than that originally offered, a n d 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 no t e vi d ence. 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 qu otation marks and citation omitted). The judgment of the district court is AFFIRMED.
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