United States v. Hernandez-Valadez , 86 F. App'x 714 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 2, 2004
Charles R. Fulbruge III
Clerk
No. 03-50615
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO HERNANDEZ-VALADEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-75-ALL-PRM
Before GARWOOD, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Roberto Hernandez-Valadez (Hernandez) appeals form his
convictions on one count of importing 50 kilograms or more of a
substance containing a detectable amount of marihuana and on one
count of possessing with intent to distribute 50 kilograms or more
of a substance containing a detectable amount of marihuana. See 21
U.S.C. §§ 841, 952, 960.
*
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opinion should not be published and is not precedent except under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.
Hernandez first argues that the evidence was insufficient to
support his conviction. The standard for reviewing a claim of
insufficient evidence is “whether, viewing all the evidence in the
light most favorable to the verdict, a rational trier of fact could
have found that the evidence establishes the essential elements of
the offense beyond a reasonable doubt.” United States v.
Villarreal, 324 F.3d 319, 322 (5th Cir. 2003). Hernandez’s
inconsistent statements to federal officials regarding ownership of
the vehicle and his purpose in crossing the bridge, along with his
nervousness at the checkpoint, are evidence of his guilty
knowledge. See United States v. Diaz-Carreon, 915 F.2d 951, 954-55
(5th Cir. 1990); United States v. Richardson, 848 F.2d 509, 513
(5th Cir. 1988). Such evidence, combined with his sole control of
the vehicle, is sufficient to support his conviction. See Diaz-
Carreon, 951 F.2d at 954.
Hernandez’s remaining argument is that the district court
erred in admitting what he characterizes as “drug courier profile
testimony” given by a Government witness, Agent Carlos Hernandez.
Because Hernandez did not object on such grounds in the district
court, our review is for plain error. See United States v. Burton,
126 F.3d 666, 671 (5th Cir. 1997). Under the plain-error standard
of review, the defendant bears the burden of showing that (1) there
is an error, (2) the error is plain, and (3) the error affects
substantial rights. See United States v. Olano, 507 U.S. 725, 732
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(1993). If these conditions are satisfied, this court has the
discretion to correct the error only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
Id. (internal quotation marks and citation omitted).
Drug courier profiles are inherently prejudicial and therefore
are not admissible as substantive evidence of the defendant’s
guilt. See United States v. Williams, 957 F.2d 1238, 1242 (5th
Cir. 1992). Agent Hernandez’s testimony, however, did not
constitute a prohibited drug courier profile, and it was not
objected to on that basis but rather simply on relevancy. See
United States v. Ramirez-Velasquez, 322 F.3d 868 (5th Cir.), cert.
denied, 124 S.Ct. 107 (2003); United States v. Gutierrez-Farias,
294 F.3d 657 (5th Cir. 2002), cert. denied, 537 U.S. 1114 (2003).
Agent Hernandez testified regarding the value of the marihuana, and
the jury, under the evidence here, could have reasonably inferred
that the defendant would not have been entrusted with the valuable
cargo if he was not part of the trafficking scheme. See Villareal,
324 F.3d at 324; United States v. Gamez-Gonzalez, 319 F.3d 695, 699
(5th Cir.), cert. denied, 123 S.Ct. 2241 (2003). Hernandez has
failed to demonstrate plain error (or error at all). See Olano,
507 U.S. at 732.
AFFIRMED.
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