USA v. Sergio Garza-Castaneda


UNPUBLISHED OPINION FILED. [09-41158 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/17/2010 for Appellant Sergio Garza-Castaneda [09-41158]

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USA v. Sergio Garza-Castaneda Case: 09-41158 Document: 00511276753 Page: 1 Date Filed: 10/27/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-41158 S u m m a r y Calendar October 27, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , v. S E R G I O GARZA-CASTANEDA, D e fe n d a n t -A p p e lla n t . A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 5:09-CR-1289-2 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* S e r g io Garza-Castaneda (Garza) appeals his jury convictions for c o n s p ir a c y to possess with intent to distribute over 1,000 kilograms of marijuana a n d possession with intent to distribute over 1,000 kilograms of marijuana. The d is t r ic t court sentenced Garza to concurrent terms of 168 months of im p r is o n m e n t and five years of supervised release. G a r z a argues that the district court abused its discretion in admitting evidence of his prior conviction for misprision of a drug felony. Garza previously 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-41158 Document: 00511276753 Page: 2 Date Filed: 10/27/2010 No. 09-41158 fa ile d to report that a large quantity of cocaine was stored in a trailer on his p r o p e r t y . The evidence was relevant to an issue other than Garza's character b e c a u s e it tended to show that he knew or was deliberately ignorant of whether m a r iju a n a was concealed in the trailer in the instant case. See United States v. B e e c h u m , 582 F.2d 898, 911 (5th Cir. 1978) (en banc). The probative value of the e v id e n c e was relatively high because there was no direct evidence that Garza k n e w there was marijuana inside the trailer. See id. at 914. The prejudicial im p a c t of the evidence was mitigated by the district court's limiting instructions t o the jury. Accordingly, the district court did not abuse its discretion in finding t h a t the probative value of the evidence was not substantially outweighed by the d a n g e r of unfair prejudice. See id. I n addition, Garza argues there was insufficient evidence that he knew the t r a ile r contained marijuana to support his convictions. The evidence construed in the light most favorable to the verdict showed that a strong odor of marijuana e m a n a t e d from the trailer. It was within the province of the jury to disbelieve G a r z a 's testimony that he did not know there was marijuana inside the trailer a n d infer that he detected the odor of marijuana. See United States v. Casilla, 2 0 F.3d 600, 602, 606 (5th Cir. 1994). Agents testified that Garza said he was b e i n g paid a large sum of money to transport the trailer a relatively short d is t a n c e and there was a fifty-fifty chance drugs were in the trailer, and the jury w a s entitled to credit the agents' testimony over Garza's. See id. Garza t r a n s p o r t e d the trailer at an unusual time, the purported recipient was not e x p e c t in g the delivery, and the purported destination was located near Garza's p r o p e r t y . The value of the drugs being transported, $577,192, is also probative o f Garza's knowledge because the jury could reasonably have inferred that Garza w o u ld not have been entrusted with extremely valuable cargo if he was not part o f the conspiracy. See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2 Case: 09-41158 Document: 00511276753 Page: 3 Date Filed: 10/27/2010 No. 09-41158 2 0 0 3 ). Therefore, there was sufficient evidence that Garza knew the trailer c o n t a in e d marijuana to support his convictions. See id. at 324-25. G a r z a also argues that the prosecutor engaged in various acts of m is c o n d u c t . Garza contends that the prosecutor introduced evidence of his prior c o n v ic t io n in a misleading manner. Evidence of the prior conviction was a d m i s s ib le , and the prosecutor accurately described the conviction. Because G a r z a has failed to show that the prosecutor's remarks were improper, he has fa ile d to show error in this regard. See United States v. McCann, 613 F.3d 486, 4 9 4 -9 5 (5th Cir. 2010). N e x t , Garza contends that the prosecutor improperly referred to his cod e fe n d a n t 's guilty plea. The Government introduced the plea for a proper p u r p o s e , and the district court issued cautionary instructions regarding a c c o m p lic e testimony. Garza, who is represented by counsel, waived c o n s id e r a t io n of the prosecutor's remarks that he contends imputed the cod e fe n d a n t 's guilty knowledge to him by virtue of inadequate briefing. See United S ta te s v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). Having failed to show t h a t the plea was improperly introduced or that the prosecutor's remarks r e g a r d in g the plea were improper, Garza has also failed to show error in this r e g a r d . See United States v. Setser, 568 F.3d 482, 494 (5th Cir.), cert. denied, 130 S . Ct. 437 (2009); see also McCann, 613 F.3d at 495. L a s t , Garza contends that the prosecutor improperly relied on a drug c o u r i e r profile as substantive evidence of his guilty knowledge. Even if the p rosecu tor's remarks were improper, any possible prejudicial effect was minimal. T h e remarks identified by Garza consisted of 11 lines in a 17-page closing a r g u m e n t . The district court instructed the jury that arguments by counsel are n o t evidence and that the case was to be decided solely on the evidence, helping t o mitigate any possible prejudice. Furthermore, as set forth above, the evidence w a s sufficient to sustain the convictions. Because Garza has failed to show that 3 Case: 09-41158 Document: 00511276753 Page: 4 Date Filed: 10/27/2010 No. 09-41158 h is substantial rights were affected by the prosecutor's remarks, he has failed t o show error in this regard as well. See McCann, 613 F.3d at 496. T h e judgment of the district court is AFFIRMED. 4

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