IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50185 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMILIO GODINES; ADRIAN AYALA-MORENO,
Defendants-Appellants.
Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-354-3
October 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Emilio Godines and Adrian Ayala-Moreno (“Ayala”) were
convicted by a jury of conspiring to possess and aiding and
abetting the possession with the intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and
18 U.S.C. § 2. Godines and Ayala each challenges the sufficiency
of the evidence to support his conviction. Specifically, each
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. argues that the evidence was insufficient to demonstrate that he
was aware of the methamphetamine hidden in the vehicle in question.
Ayala contends that his testimony established his lack of
knowledge of the drugs hidden in the car and offered a reasonable
explanation of his innocence. He concedes that cooperating
codefendant Ruben Buenfil’s testimony tended to show that Ayala
exercised some control over the drug-laden vehicle but asserts that
there was no other circumstantial evidence of guilty knowledge to
support his conviction.
In reviewing a challenge to the sufficiency of the evidence,
we must determine whether a rational jury could have found that the
evidence established guilt beyond a reasonable doubt on each
element of the offense, drawing all reasonable inferences from the
evidence and viewing all credibility determinations in the light
most favorable to the verdict.1 We do not evaluate the weight of
the evidence or the credibility of the witnesses.2 If this review
of the evidence gives equal or nearly equal circumstantial support
to a theory of guilt and a theory of innocence of the offense
charged, we are required to reverse.3 On the other hand, the
evidence presented need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
1 United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001). 2 United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001). 3 Barton, 257 F.3d at 439.
2 that of guilt, and we have noted that the jury is free to choose
among reasonable constructions of the evidence.4
The evidence, when viewed in the light most favorable to the
government, establishes that a reasonable jury could find beyond a
reasonable doubt that Ayala had guilty knowledge. That Ayala
offered an explanation of his innocence is of no moment.5
Moreover, the jury clearly did not credit his testimony denying
knowledge of the drugs, and this court will not disturb the jury’s
credibility determination.6 The evidence demonstrated that Ayala
and his girlfriend owned the vehicle in which the drugs were
hidden; that Ayala offered Buenfil $1,000 to drive the car across
the border; that Ayala made arrangements to pick Buenfil up, meet
Godines, and deliver the vehicle; that Ayala provided Buenfil with
instructions for delivering the car in Texas and left a cell phone
contact number in case Buenfil got lost; that Ayala stated, in
response to Buenfil’s questions about what was in the car, that he
did not care if someone ended up in jail; and that, when Ayala
later reclaimed the vehicle from Buenfil, Ayala drove erratically
at high rates of speed, apparently attempting to overtake Buenfil
4 United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). 5 See id.; see also United States v. Lage, 183 F.3d 374, 382- 83 (5th Cir. 1999), cert. denied, 528 U.S. 1163 (2000); United States v. Bustamante, 45 F.3d 933, 938 (5th Cir. 1995). 6 See Delgado, 256 F.3d at 273-74.
3 after discovering that the methamphetamine was not in the hidden
compartment. The record thus supplies circumstances sufficiently
evidencing a consciousness of guilt on Ayala’s part.7 His
insufficiency claim therefore fails, and his conviction is
AFFIRMED.
Godines’s insufficiency argument is similarly unavailing. His
challenge is based on the fact that Ayala and Buenfil gave
conflicting testimony. Godines specifically challenges Ayala’s
testimony, asserting that it is incredible on its face.
Contrary to Godines’s assertions, the evidence, when viewed in
the light most favorable to the government, is sufficient to
support Godines's conviction. There was evidence introduced at
trial to show that Godines delivered the car in which the
methamphetamine was hidden to the meeting place to turn over to
Buenfil; that Godines owned the cell phone that was used as the
contact number for Buenfil while driving the car across the border;
that the car carrying the methamphetamine was ultimately delivered
to Godines's residence; and that Godines became very nervous after
Buenfil delivered the car without the methamphetamine, reaching
into the secret compartment and calling someone to report that the
car had arrived “without the merchandise.” Godines urges that
because the jury discredited a portion of Ayala’s testimony related
7 Cf. United States v. Mendoza, 226 F.3d 340, 345-46 (5th Cir. 2000); United States v. Williams-Hendricks, 805 F.2d 496, 500- 01 (5th Cir. 1986).
4 to Ayala's own claim of innocence, the rest of Ayala’s testimony,
particularly that which implicated Godines, cannot be credited. He
is incorrect: a jury is free to choose to believe part of a
witness's testimony without believing all of that witness's
testimony.8 Godines has not demonstrated that Ayala's testimony
was insubstantial or incredible on its face and thereby
insufficient to sustain his conviction.9
Godines additionally argues that the trial court erred in
sustaining Ayala’s objection to the admission into evidence of
Buenfil’s plea agreement and in failing to strike a statement
Buenfil made at trial to the effect that Buenfil was afraid of
Godines. We review a district court's evidentiary rulings for
abuse of discretion only,10 but in the context of a criminal trial,
our review is necessarily heightened, such that we examine what
effect the alleged error had or reasonably may be taken to have had
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50185 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMILIO GODINES; ADRIAN AYALA-MORENO,
Defendants-Appellants.
Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-354-3
October 17, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Emilio Godines and Adrian Ayala-Moreno (“Ayala”) were
convicted by a jury of conspiring to possess and aiding and
abetting the possession with the intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 and
18 U.S.C. § 2. Godines and Ayala each challenges the sufficiency
of the evidence to support his conviction. Specifically, each
* 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. argues that the evidence was insufficient to demonstrate that he
was aware of the methamphetamine hidden in the vehicle in question.
Ayala contends that his testimony established his lack of
knowledge of the drugs hidden in the car and offered a reasonable
explanation of his innocence. He concedes that cooperating
codefendant Ruben Buenfil’s testimony tended to show that Ayala
exercised some control over the drug-laden vehicle but asserts that
there was no other circumstantial evidence of guilty knowledge to
support his conviction.
In reviewing a challenge to the sufficiency of the evidence,
we must determine whether a rational jury could have found that the
evidence established guilt beyond a reasonable doubt on each
element of the offense, drawing all reasonable inferences from the
evidence and viewing all credibility determinations in the light
most favorable to the verdict.1 We do not evaluate the weight of
the evidence or the credibility of the witnesses.2 If this review
of the evidence gives equal or nearly equal circumstantial support
to a theory of guilt and a theory of innocence of the offense
charged, we are required to reverse.3 On the other hand, the
evidence presented need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except
1 United States v. Barton, 257 F.3d 433, 439 (5th Cir. 2001). 2 United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001). 3 Barton, 257 F.3d at 439.
2 that of guilt, and we have noted that the jury is free to choose
among reasonable constructions of the evidence.4
The evidence, when viewed in the light most favorable to the
government, establishes that a reasonable jury could find beyond a
reasonable doubt that Ayala had guilty knowledge. That Ayala
offered an explanation of his innocence is of no moment.5
Moreover, the jury clearly did not credit his testimony denying
knowledge of the drugs, and this court will not disturb the jury’s
credibility determination.6 The evidence demonstrated that Ayala
and his girlfriend owned the vehicle in which the drugs were
hidden; that Ayala offered Buenfil $1,000 to drive the car across
the border; that Ayala made arrangements to pick Buenfil up, meet
Godines, and deliver the vehicle; that Ayala provided Buenfil with
instructions for delivering the car in Texas and left a cell phone
contact number in case Buenfil got lost; that Ayala stated, in
response to Buenfil’s questions about what was in the car, that he
did not care if someone ended up in jail; and that, when Ayala
later reclaimed the vehicle from Buenfil, Ayala drove erratically
at high rates of speed, apparently attempting to overtake Buenfil
4 United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir. 1998). 5 See id.; see also United States v. Lage, 183 F.3d 374, 382- 83 (5th Cir. 1999), cert. denied, 528 U.S. 1163 (2000); United States v. Bustamante, 45 F.3d 933, 938 (5th Cir. 1995). 6 See Delgado, 256 F.3d at 273-74.
3 after discovering that the methamphetamine was not in the hidden
compartment. The record thus supplies circumstances sufficiently
evidencing a consciousness of guilt on Ayala’s part.7 His
insufficiency claim therefore fails, and his conviction is
AFFIRMED.
Godines’s insufficiency argument is similarly unavailing. His
challenge is based on the fact that Ayala and Buenfil gave
conflicting testimony. Godines specifically challenges Ayala’s
testimony, asserting that it is incredible on its face.
Contrary to Godines’s assertions, the evidence, when viewed in
the light most favorable to the government, is sufficient to
support Godines's conviction. There was evidence introduced at
trial to show that Godines delivered the car in which the
methamphetamine was hidden to the meeting place to turn over to
Buenfil; that Godines owned the cell phone that was used as the
contact number for Buenfil while driving the car across the border;
that the car carrying the methamphetamine was ultimately delivered
to Godines's residence; and that Godines became very nervous after
Buenfil delivered the car without the methamphetamine, reaching
into the secret compartment and calling someone to report that the
car had arrived “without the merchandise.” Godines urges that
because the jury discredited a portion of Ayala’s testimony related
7 Cf. United States v. Mendoza, 226 F.3d 340, 345-46 (5th Cir. 2000); United States v. Williams-Hendricks, 805 F.2d 496, 500- 01 (5th Cir. 1986).
4 to Ayala's own claim of innocence, the rest of Ayala’s testimony,
particularly that which implicated Godines, cannot be credited. He
is incorrect: a jury is free to choose to believe part of a
witness's testimony without believing all of that witness's
testimony.8 Godines has not demonstrated that Ayala's testimony
was insubstantial or incredible on its face and thereby
insufficient to sustain his conviction.9
Godines additionally argues that the trial court erred in
sustaining Ayala’s objection to the admission into evidence of
Buenfil’s plea agreement and in failing to strike a statement
Buenfil made at trial to the effect that Buenfil was afraid of
Godines. We review a district court's evidentiary rulings for
abuse of discretion only,10 but in the context of a criminal trial,
our review is necessarily heightened, such that we examine what
effect the alleged error had or reasonably may be taken to have had
upon the jury's decision.11 If we find an abuse of discretion in
the admission or exclusion of evidence, however, we review the
error under the harmless error doctrine, and we must affirm an
8 See United States v. Pruneda-Gonzalez, 953 F.2d 190, 196 n.9 (5th Cir. 1992). 9 See United States v. Lopez, 74 F.3d 575, 587 (5th Cir. 1996); United States v. Gardea Carrasco, 830 F.2d 41, 44 (5th Cir. 1987). 10 United States v. Loe, 262 F.3d 427, 436 (5th Cir. 2001). 11 United States v. Nutall, 180 F.3d 182, 189 (5th Cir. 1999), cert. denied, 530 U.S. 1206 (2000).
5 evidentiary ruling unless it affects a substantial right of the
complaining party.12 Under the harmless error doctrine, we view the
error in relation to the entire proceedings and decide if the
inadmissible evidence actually contributed to the jury's verdict.13
Our review of the record indicates that Godines has not
demonstrated that the district court abused its discretion in
making these evidentiary rulings. Moreover, Godines was able to
cross-examine Buenfil about the statement that Buenfil was afraid
of Godines and about the contents of Buenfil's plea agreement. Any
error, therefore, which might have occurred in refusing to admit
the written agreement itself and in refusing to strike Buenfil's
statement that he was afraid of Godines was harmless in the context
of the entire proceedings.
Godines also challenges his sentence, urging that the district
court should have sentenced him to the low end of the guidelines
range and should have awarded him a four-level reduction, pursuant
to U.S.S.G. § 3B1.2, for being a minimal participant. There is no
authority by which a defendant may challenge where his sentence
fell within a properly-calculated guidelines range.14 The defendant
bears the burden of proving his role as a minimal participant in
12 United States v. Haese, 162 F.3d 359, 364 (5th Cir. 1998). 13 United States v. Skipper, 74 F.3d 608, 612 (5th Cir. 1996). 14 See United States v. O’Banion, 943 F.2d 1422, 1431 (5th Cir. 1991).
6 the offense by a preponderance of the evidence.15 Whether Godines
was a minimal participant entitled to a four-level reduction
pursuant to U.S.S.G. § 3B1.2(a) is a factual determination that we
review only for clear error.16 The commentary to section 3B1.2
makes clear that a defendant's lack of knowledge or understanding
of the activities of others is indicative of a role as a minimal
participant.17 Godines has not established that the district
court’s determination that he was not a minimal participant was
clear error, and his argument that he was entitled to a four-level
reduction fails. Godines's reliance on the shortcomings that he
perceives in the evidence contained in the PSR of his culpability
is misplaced, because the district court was free to consider the
evidence presented at trial in deciding whether to grant Godines's
request for a four-level reduction as a minimal participant.18 On
the facts in the record before us, the district court did not err
in determining that Godines was not a minimal participant under
section 3B1.2. Godines’s conviction and sentence are AFFIRMED.
15 United States v. Brown, 54 F.3d 234, 241 (5th Cir. 1995). 16 United States v. Becerra, 155 F.3d 740, 757 (5th Cir. 1998). 17 U.S.S.G. § 3B1.2, cmt. n.1 (1998). 18 See United States v. Montes, 976 F.2d 235, 240 (5th Cir. 1992).