United States v. Lozano , 156 F. App'x 660 ( 2005 )

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                                                       United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                December 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-10732
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALBERTO LOZANO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-327-ALL-Y
--------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Alberto Lozano appeals his conviction following a jury
trial of possession with the intent to distribute more than 100
kilograms of marijuana, in violation of

21 U.S.C. § 841

.       We
affirm.
Lozano first argues that the evidence was insufficient to
support his conviction because there was insufficient evidence of
his guilty knowledge.
*
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this opinion should not be published and is not precedent except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. 04-10732
-2-
Viewing the evidence in the light most favorable to the
prosecution, there was sufficient evidence from which a
reasonable jury could infer that Lozano knew about the marijuana
hidden in his tractor-trailer.1   The Government presented ample
circumstantial evidence, aside from his control of the trailer in
which the drugs were found, of guilty knowledge.   Dole employees
testified that Lozano’s cargo was loaded in the normal manner,
establishing both that Lozano had observed the loading of the
cargo in his trailer and that the cargo had been tampered with
after loading.   Trooper Forrest testified that Lozano was nervous
when stopped, had an unusually nonchalant reaction to the
disarray of his cargo, denied having let the trailer out of his
sight after leaving Dole, and had inexplicable inconsistencies in
his log book entries, including an unaccounted-for 18-hour delay
after taking on perishable cargo.   Additionally, testimony
established that the marijuana had a high street value, in excess
of $400,000, a fact from which the jury could infer Lozano’s
knowledgeable involvement in a drug-trafficking scheme.2
Considered together, this testimony provided sufficient
circumstantial evidence of Lozano’s guilty knowledge.3
1
See Jackson v. Virginia,

443 U.S. 307

, 319 (1979); see also

21 U.S.C. § 841

(a)
2
United States v. Villarreal,

324 F.3d 319

, 324 (5th Cir.
2003).
3
See United States v. Ortega Reyna,

148 F.3d 540

, 544 (5th
Cir. 1998).
No. 04-10732
-3-
Lozano next contends that statements at trial made by
Trooper Forrest, Officer Malugani, and the prosecutor improperly
commented on his pre- and post-arrest silence, in violation of
his Fifth Amendment rights and Doyle v. Ohio.4    Because he did
not object to these statements below, we review for plain error.5
Assuming without deciding that there was error here, Lozano has
not established plain error because has not shown that the error
affected his substantial rights.    Given the abundant evidence of
his guilt and the indirect nature of the comments about his
silence, he cannot show that the comments “affected the outcome
of the district court proceedings.”6
Lozano additionally contends, also for the first time on
appeal, that the prosecutor, by using the pronoun “we” to refer
to the entirety of the Government’s case during closing argument,
impermissibly vouched for the credibility of its witnesses.    He
further argues that the prosecutor improperly referred to the
cost of prosecuting him and impermissibly attempted to shift the
burden of proof to him during closing argument.
The record demonstrates that Lozano has misconstrued the
prosecutor’s arguments and that none of the statements about
which Lozano complains, when taken in context, were improper.
4

426 U.S. 610

 (1976).
5
FED. R. CRIM. P. 52(b); United States v. Olano,

507 U.S. 725

,
732 (1993).
6
Olano,

507 U.S. at 734

.
No. 04-10732
-4-
Moreover, even if the prosecutor’s remarks were improper, Lozano
cannot establish plain error.   His substantial rights were not
affected because the evidence of guilt was overwhelming and
because the district court’s instructions that the statements,
objections, and arguments made by the lawyers are not evidence,
coupled with its instruction that the jury consider only the
evidence, were sufficient to cure any prejudice.7
The district court’s judgment is AFFIRMED.
7
See United States v. Ramirez- Velasquez,

322 F.3d 868