United States v. Cano-Guel

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-51071

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FRANCISCO CANO-GUEL,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Texas

_________________________________________________________________

February 12, 1999

Before HIGGINBOTHAM, BENAVIDES, and DENNIS Circuit Judges.

BENAVIDES, Circuit Judge:

Francisco Cano-Guel (“Cano-Guel”) appeals from his criminal

conviction and sentence for importation of and possession with

intent to distribute marijuana. Cano-Guel contends that the

evidence was insufficient to support his two count conviction,

that the district court committed plain error in failing to

define “knowingly” in its jury charge, and that the district

court erred in refusing to reduce his offense level for

acceptance of responsibility. For the reasons set forth below,

we AFFIRM both Cano-Guel’s conviction and sentence.

I. Background

A.

On June 21, 1997, Cano-Guel was arrested at the El Paso,

Texas, Port of Entry after U.S. Customs agents discovered

marijuana concealed in the Buick he was driving into the United

States. Following his arrest, a two count indictment issued

charging Cano-Guel with importation of marijuana (Count One) and

possession of marijuana with intent to distribute (Count Two).

He entered into a plea agreement with the Government. In

exchange for his plea of guilty to Count One, the Government

agreed (1) to move for dismissal of Count Two and (2) to not

oppose a three-level reduction in offense level for acceptance of

responsibility. At the October 16 rearraignment hearing,

however, the district court refused to accept Cano-Guel’s plea of

guilty and, instead, set his case for trial on October 20, 1997.

Following a two day trial, the jury found Cano-Guel guilty

on both counts. On December 9, 1997, the district court

sentenced him to concurrent 21-month terms of imprisonment.

B.

At approximately 9:00 a.m., on Saturday, June 21, 1997,

Cano-Guel entered the United States from the Republic of Mexico

through the Bridge of Americas Port of Entry in El Paso, Texas.

He was the driver and sole occupant of a 1985 Buick Century,

bearing Mexican registration. At primary inspection, he showed

Customs Inspector Auden Ramos his resident alien card. In

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response to questioning, Cano-Guel stated that he had nothing to

declare and that he was going to El Paso “to buy groceries” or

“to buy a few things.”1 He also told Inspector Ramos that the

car belonged to a friend. Cano-Guel did not appear to be nervous

and the car did not smell of contraband. Inspector Ramos,

however, referred Cano-Guel to secondary inspection because he

noticed that the glove compartment did not contain registration

or insurance papers, that the key ring held only one key besides

the ignition key, and that the car contained no personal

belongings or trash.

At secondary inspection, Cano-Guel told Customs Inspector

Thomas Klukas that he had borrowed the Buick from his mechanic

because his own car was not running well. A canine alerted to

the presence of marijuana and officers discovered bundles of the

drug hidden inside the dashboard as well as the rear doors.

Approximately 59.7 pounds of marijuana were recovered from the

Buick. The marijuana could not be seen by a person sitting in

the car and the customs inspectors testified that they could not

smell the drug until after the packages of marijuana were opened.

Inspector Klukas escorted Cano-Guel to the head house where

he was frisked for weapons and contraband. Customs Special Agent

John Alpers interviewed Cano-Guel after advising him of his

1

The exchange between Cano-Guel and Ramos took place in

Spanish.

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Miranda rights.2 Cano-Guel told Agent Alpers that he had been

going to El Paso to see a doctor. Cano-Guel initially could not

remember the doctor’s name. After some thought, he recalled that

it was “Dr. Negrete.” Cano-Guel told Alpers that Dr. Negrete’s

office was on Mesa Street near the hospital but that he did not

know the precise address. He said that Dr. Negrete had performed

hernia surgery on him four years earlier and had told him to

return if he became ill. Cano-Guel admitted that he did not have

an appointment with Dr. Negrete, but said that he was on his way

to the doctor’s office to make an appointment. Agent Alpers

commented that Cano-Guel’s report about his visit to the doctor

did not seem truthful to which Cano-Guel responded that he was a

Christian and did not lie. Cano-Guel told Agent Alpers that the

Buick belonged to his friend Javier, whom he had known since

Javier was a child, and that he had picked up the car that

morning from Javier’s garage. Cano-Guel, however, did not know

Javier’s last name. Cano-Guel also told Alpers that he did not

currently own a car.

Cano-Guel later testified at trial that he lived in Juarez

where he cared for his elderly father. Cano-Guel explained that

Javier, the person who loaned him the car, was about 30 years old

and that Cano-Guel had met him about 15 years earlier when Cano-

2

The interview was conducted in Spanish. Agent Alpers

testified that his Spanish is “fairly good” and that he was

assisted by interpreter Carlos Macias.

4

Guel was coaching a football team. According to Cano-Guel,

Javier owns a mechanic’s shop in Juarez. Cano-Guel testified

that he did not know Javier’s last name or the location of his

shop.

Cano-Guel additionally testified that, on the day of his

arrest, he was in great pain from his hernia. He went to his

brother Jesus’ house to borrow Jesus’ truck so that he might go

to El Paso and make an appointment with Dr. Negrete.3 Cano-Guel

could not borrow Jesus’ truck because it was not running well.4

According to Cano-Guel, he sat down on the sidewalk, dejected

because he was in too much pain to walk to the bus stop in order

to take a bus to El Paso. While sitting there, Javier drove up.

When he learned of Cano-Guel’s problem, Javier offered to loan

him a car and told Cano-Guel to wait. Javier returned about 25

minutes later driving the Buick. Cano-Guel explained that

Javier, himself, could not take Cano-Guel to Dr. Negrete’s office

because Javier did not have a crossing card. Cano-Guel denied

knowing that the Buick contained marijuana, but did admit that

the car had a strange odor as if “it was coming from the

outdoors, from the land, from agriculture.”

3

Cano-Guel testified that he has had recurring hernia

problems and that Dr. Negrete operated on him three times in

1992.

4

Cano-Guel’s brother and sister-in-law also testified that

he had tried to borrow their truck to go to the doctor on the day

of his arrest, but that they had refused because the truck had

mechanical problems.

5

On cross-examination, Cano-Guel agreed that he had told

Inspector Ramos that he was coming to the United States to go

shopping. He also agreed that he had told Inspector Klukas that

the Buick belonged to a mechanic in Juarez and that Cano-Guel had

left his vehicle with a mechanic because it was not running well.

He insisted, however, that he had not intended to convey to

Inspector Klukas that he had left his own vehicle with the person

who loaned him the Buick. Cano-Guel explained that he had told

Inspector Klukas that his car was at a mechanic’s because he and

his siblings considered their possessions common property and

because his sister-in-law had told him that his brother’s truck

was going to be taken to the mechanic that day. Cano-Guel

admitted that he had not seen a doctor about his hernia until the

Friday before trial. He additionally told the court that he did

not think that anyone had followed the Buick and that he had no

idea how the owners of the marijuana planned to remove it from

the Buick once it crossed into the United States.

II. DISCUSSION

A.

Cano-Guel argues that the evidence is insufficient to

support his conviction because it fails to establish that he knew

that marijuana was hidden in the Buick, an element necessary to

prove both the importation and the possession charges.

The narrow scope of review for sufficiency of the evidence

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following a conviction is well established. We have explained

that, in evaluating the sufficiency of the evidence on appeal,

the reviewing court must consider the evidence in the light most

favorable to the Government, drawing all reasonable inferences in

support of the jury's verdict. See United States v. Lopez, 74

F.3d 575, 577 (5th Cir. 1996). The evidence is sufficient if a

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); United States v.

Gaytan, 74 F.3d 545, 555 (5th Cir. 1996). The evidence need not

exclude every reasonable hypothesis of innocence, and the jury is

free to choose among reasonable constructions of the evidence.

See Lopez, 74 F.3d at 577. That being said, we have cautioned

that if the evidence gives “equal or nearly equal circumstantial

support” to a theory of guilt and a theory of innocence, reversal

is required. United States v. Sanchez, 961 F.2d 1169, 1173 (5th

Cir. 1992).

A conviction for the offense of possession of marijuana with

intent to distribute requires proof that the defendant

(1) knowingly (2) possessed marijuana (3) with intent to

distribute it. See Lopez, 42 F.3d at 577. Importation of

marijuana, in contrast, requires proof that: (1) the defendant

played a role in bringing a quantity of marijuana into the United

States from a place outside the United States; (2) the defendant

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knew the substance was marijuana; and (3) the defendant knew the

substance would enter the United States. See United States v.

Casilla, 20 F.3d 600, 603 (5th Cir. 1994). To establish either

crime, “the government must adduce sufficient evidence of guilty

knowledge.” Lopez, 74 F.3d at 577; see also United States v.

Diaz-Carreon, 915 F.2d 951, 953 (5th Cir. 1990).

It is rare that direct evidence is available to prove the

knowledge element for possession or importation of drugs. See

Lopez, 74 F.3d at 577; United States v. Garza, 990 F.2d 171, 174

(5th Cir. 1993). Although knowledge may sometimes be inferred

solely from control of a vehicle containing drugs, when the drugs

are secreted in hidden compartments, as in the present case, the

Government must produce additional “circumstantial evidence that

is suspicious in nature or demonstrates guilty knowledge.”

United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir.1995).

This requirement stems from the recognition that, in hidden

compartment cases, there "is at least a fair assumption that a

third party might have concealed the controlled substances in the

vehicle with the intent to use the unwitting defendant as the

carrier in a smuggling enterprise.” Diaz-Carreon, 915 F.2d at

954. In the present case, the Government points to Cano-Guel’s

conflicting statements to customs officials and his implausible

story as circumstantial proof of his guilty knowledge.

According to the Government, Cano-Guel made several

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conflicting statements to customs officials at the El Paso port

of entry. The conflicting statements included (1) telling

Inspector Ramos that he was going to the United States to buy

“groceries” or a few things” and telling Agent Alpers that he was

going to the doctor, (2) stating that the Buick belonged to a

friend and later claiming that it belonged to his mechanic,

(3) telling Inspector Klukas that his car was in the shop and

revealing to other agents that he did not own a car, (4)

informing Agent Alpers that he had picked up the Buick at

Javier’s garage and testifying at trial that Javier drove the car

to him.

Moreover, the Government asserts that Cano-Guel provided

customs officials an implausible explanation of his motive for

traveling into the United States. Cano-Guel claimed that he was

in a great deal of pain and entered the United States so that he

might see Dr. Negrete. Yet, testimony at trial revealed that

Cano-Guel never complained of being ill, either at the checkpoint

or while being processed in the County Detention Facility. In

fact, Cano-Guel admitted that he had not seen a doctor concerning

his hernia until the Friday before trial--some four months after

the date he attempted to enter the country.

In addition to the implausible explanation of Cano-Guel’s

motive to travel argued by the Government, we find equally

implausible Cano-Guel’s account of how he came to possess the

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Buick. At trial, Cano-Guel testified that when he failed to

borrow his brother’s truck, he sat on the sidewalk in despair

until Javier, his mechanic-friend, came by and offered to loan

him a car. According to Cano-Guel, he had known Javier for

fifteen years yet knew neither his last name nor the location of

his mechanic’s shop.

On the basis of these implausible stories and the apparent

inconsistencies in statements made by Cano-Guel to customs

agents, we find the evidence sufficient to support an inference

by the jury that Cano-Guel knew that the Buick contained

marijuana. Although we are mindful that “[n]o single piece of

circumstantial evidence need be conclusive when considered in

isolation,” United States v. Miller, 146 F.3d 274, 281 (5th

Circ. 1998), we recognize that inconsistent statements and

implausible explanations are types of behavior that can

reasonably be relied upon as circumstantial evidence of guilty

knowledge. See Diaz-Carreon, 915 F.2d at 955 (discussing

inconsistent statements of appellant); Casilla, 20 F.3d at 606

(noting implausible explanation of events offered by appellant).

The jury thus drew reasonable and rational inferences from the

facts in this case and returned a verdict of guilty. We see no

reason to disturb that determination.

B.

Cano-Guel also argues that the district court erred by

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failing to include a definition of the term “knowingly” in its

instruction to the jury. In particular, he complains that the

jury was not instructed that his exercise of control over the

Buick, in and of itself, was inadequate to establish that he

knowingly possessed the hidden drugs. Because Cano-Guel did not

ask the district court for such an instruction, we review the

district court’s charge to the jury for plain error. See United

States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994).

Under the plain error standard, an appellant must show:

(1) that there was error; (2) that it was clear and obvious; and

(3) that it affected the appellant’s substantial rights. See

United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997), cert.

denied, --- U.S. ---, 118 S.Ct. 857 (1998); see also United

States v. Olano, 507 U.S. 725, 730-36, 113 S.Ct. 1770, 1775-79

(1993) (requiring defendant, in most cases, to make a specific

showing of prejudice to satisfy the substantial rights prong).

Even when these criteria are satisfied, a court should exercise

its discretion to reverse only if the forfeited error “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” Olanu, 507 U.S. at 732, 113 S.Ct. at 1777.

We have held that the term “knowingly” is given its common

meaning in the statutes prohibiting the possession of controlled

substances and that no further jury instruction is required if

the jury is correctly instructed as to the substantive offenses.

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See United States v. Sanchez-Soleto, 8 F.3d 202, 212 (5th Cir.

1993). Here, the district court’s charge to the jury tracked the

Fifth Circuit pattern jury instruction on actual and constructive

possession. See Fifth Circuit Pattern Jury Instruction 1.31

(Criminal Cases) (1990). Moreover, the district court instructed

the jury on the elements of the two charged offenses.

Accordingly, we hold that the district court did not commit

error, plain or otherwise, in its instruction to the jury.

C.

Cano-Guel further argues that the district court erred by

failing (1) to accept his guilty plea, which he characterizes as

an Alford5 or nolo contendere plea, and (2) to grant him a three-

level downward departure for acceptance of responsibility. Cano-

Guel incorrectly characterizes his proffered plea. Neither the

written plea agreement nor the transcript of the rearraignment

hearing suggests that Cano-Guel and the Government negotiated an

Alford or a nolo plea.

A district court may not accept a guilty plea unless it is

supported by a sufficient factual basis. See United States v.

Carter, 117 F.3d 262, 264 (5th Cir. 1997); see also F.R.Crim P.

11(f). The facts supporting the plea must “appear in the record

and must be sufficiently specific to allow the court to determine

if the defendant’s conduct was within the ambit of that defined

5

North Carolina v. Alford, 400 U.S. 25, 37 (1970).

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as criminal.” Carter, 117 F.3d at 264. We review for clear

error the district court’s decision whether to accept a plea.

Id.

Knowledge is an element of both the importation and

possession offenses. See Casilla, 20 F.3d at 603. Because Cano-

Guel insisted that he did not know that the Buick contained

marijuana, the district court did not clearly err by determining

that his guilt or innocence should be determined by a jury.

Furthermore, Cano-Guel’s contention that he would be

entitled to a mandatory downward departure for acceptance of

responsibility had Judge Hudspeth accepted his Alford plea lacks

merit.6 The entering of a plea (even an unequivocal guilty plea)

does not automatically constitute acceptance of responsibility.

See U.S. Sentencing Guidelines Manual § 3E1.1 application note 3

("A defendant who enters a guilty plea is not entitled to an

adjustment under this section as a matter of right."); United

States v. Harlan, 35 F.3d 176, 181 (5th Cir. 1994) (discussing

acceptance of responsibility departure in context of Alford

plea). A defendant must affirmatively demonstrate to the

district court that he is entitled to the downward departure.

Because trial courts are in a "unique position to evaluate

whether the defendant has demonstrated acceptance of

6

Under the sentencing guidelines, a district court may

decrease a defendant’s offense level if it finds that “the

defendant clearly demonstrates acceptance of responsibility for

his offense.” U.S. Sentencing Guidelines Manual § 3E1.1.

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responsibility," Frank v. Blackburn, 646 F.2d 873, 885 (5th Cir.

1980), a district court’s finding on acceptance of responsibility

is examined “for clear error but under a standard of review even

more deferential than a pure ‘clearly erroneous’ standard.”

United States v. Gonzales, 19 F.3d 982, 983 (5th Cir. 1994)

(internal citation and quotation omitted).

Here, the district court denied the reduction for acceptance

of responsibility with the comment that Cano-Guel’s report of

smelling an odor in the car was “very watered down” in his

testimony before the jury and that it had no doubt that Cano-Guel

“was simply employed for a fee to cross the marijuana.” Because

“[a] defendant’s refusal to acknowledge essential elements of an

offense is incongruous with the guideline’s commentary that

truthful admission of the conduct comprising an offense is

relevant in determining whether a defendant qualifies [for a

reduction for acceptance of responsibility],” Harlan, 35 F.3d at

181, Cano-Guel has failed to show that the district court erred

in its determination not to grant a § 3E1.1 departure.

CONCLUSION

Cano-Guel raises three issues on appeal none of which

warrant reversal. We, therefore, affirm both Cano-Guel’s

conviction and sentence.

AFFIRMED.

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