United States v. Rios-Torres

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 13, 2006
• Docket: 05-50097
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 13, 2006

Charles R. Fulbruge III Clerk No. 05-50097 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO RIOS-TORRES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. 3:04-CR-425-ALL-PRM --------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Alfredo Rios-Torres (Rios) appeals his conviction on one

count of importation of marijuana into the United States and one

count of possession of marijuana with intent to distribute. We

disagree with Rios that the evidence was insufficient to support

the jury’s verdict and, therefore, we affirm his conviction.

Rios first challenges the evidence regarding his knowledge

of the marijuana, an essential element for both the possession

and importation charges. See United States v. Lopez, 74 F.3d

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 05-50097 -2-

575, 577 (5th Cir. 1996). As Rios made a timely Rule 29 motion

for acquittal based on this element, we review under the usual

“rational jury” standard. See United States v. Villarreal, 324

F.3d 319, 322 (5th Cir. 2003). As the marijuana was concealed,

knowledge cannot be inferred from Rios’s control of the van in

which the marijuana was found. See United States v. Ortega

Reyna, 148 F.3d 540, 543-44 (5th Cir. 1998). However, there was

sufficient circumstantial evidence of Rios’s knowledge, including

his nervous behavior before and after the marijuana was

discovered and his changing stories regarding where he obtained

the marijuana and what he planned to do with it. See id.; see

also United States v. Moreno, 185 F.3d 465, 471-72 (5th Cir.

1999). Although Rios offered explanations for his

inconsistencies, the jury was free to choose between reasonable

constructions of the evidence. See Ortega Reyna, 148 F.3d at

543. A rational jury or trier of fact could conclude, as the

jury did here, that the evidence established his knowledge of the

marijuana beyond a reasonable doubt.

Rios also challenges the jury’s finding of intent to

distribute and that he imported the marijuana into the United

States from Mexico. In his initial Rule 29 motion, Rios

specifically challenged only the sufficiency of evidence

regarding knowledge. Thus, he waived his challenge on any other

specific elements. See United States v. Herrera, 313 F.3d 882,

884-85 (5th Cir. 2002) (en banc). Although Rios subsequently No. 05-50097 -3-

sought to include intent to distribute in his Rule 29 challenge,

he did so after the jury had retired to deliberate, rendering his

challenge untimely. FED. R. CIV. P. 29. Further, at no time did

he specifically challenge the sufficiency of the evidence on

importation. Thus, he did not preserve these issues, and we

review to determine whether the record is devoid of evidence to

support the jury’s verdict. See id. at 884.

With respect to intent to distribute, such intent may be

inferred solely from the possession of an amount of drugs too

large for personal use by the possessor. See United States v.

Prieto-Tejas, 779 F.2d 1098, 1101 (5th Cir. 1986); United States

v. Flynn, 664 F.2d 1296, 1307 (5th Cir. 1982). Here, the total

weight of the marijuana was 217 pounds, and it was packaged and

hidden in 29 boxes. Even under the more generous “rational

juror” standard, we conclude that this evidence was sufficient

for the jury to infer that the marijuana was intended for

distribution.

As to importation, it is clear from the evidence that Rios

had crossed from Juarez, Mexico, into El Paso, Texas, with the

tiles. There were numerous references to Rios obtaining the

tiles in Mexico and crossing over to bring the tiles to El Paso

to avoid paying import fees. The officers who testified made it

clear that their function was to investigate vehicles crossing

into the United States from Mexico. Even under the “rational

juror” standard, the evidence of importation passes muster. No. 05-50097 -4-

For the foregoing reasons, we AFFIRM Rios’s conviction.