United States v. Sergio Garza-Castaneda , 398 F. App'x 985 ( 2010 )


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  •      Case: 09-41158 Document: 00511276753 Page: 1 Date Filed: 10/27/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 27, 2010
    No. 09-41158
    Summary Calendar                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    SERGIO GARZA-CASTANEDA,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:09-CR-1289-2
    Before WIENER, PRADO, and OWEN, Circuit Judges.
    PER CURIAM:*
    Sergio Garza-Castaneda (Garza) appeals his jury convictions for
    conspiracy to possess with intent to distribute over 1,000 kilograms of marijuana
    and possession with intent to distribute over 1,000 kilograms of marijuana. The
    district court sentenced Garza to concurrent terms of 168 months of
    imprisonment and five years of supervised release.
    Garza 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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
    failed to report that a large quantity of cocaine was stored in a trailer on his
    property. The evidence was relevant to an issue other than Garza’s character
    because it tended to show that he knew or was deliberately ignorant of whether
    marijuana was concealed in the trailer in the instant case. See United States v.
    Beechum, 
    582 F.2d 898
    , 911 (5th Cir. 1978) (en banc). The probative value of the
    evidence was relatively high because there was no direct evidence that Garza
    knew there was marijuana inside the trailer. See 
    id. at 914
    . The prejudicial
    impact of the evidence was mitigated by the district court’s limiting instructions
    to the jury. Accordingly, the district court did not abuse its discretion in finding
    that the probative value of the evidence was not substantially outweighed by the
    danger of unfair prejudice. See 
    id.
    In addition, Garza argues there was insufficient evidence that he knew the
    trailer contained marijuana to support his convictions. The evidence construed
    in the light most favorable to the verdict showed that a strong odor of marijuana
    emanated from the trailer. It was within the province of the jury to disbelieve
    Garza’s testimony that he did not know there was marijuana inside the trailer
    and infer that he detected the odor of marijuana. See United States v. Casilla,
    
    20 F.3d 600
    , 602, 606 (5th Cir. 1994). Agents testified that Garza said he was
    being paid a large sum of money to transport the trailer a relatively short
    distance and there was a fifty-fifty chance drugs were in the trailer, and the jury
    was entitled to credit the agents’ testimony over Garza’s.         See 
    id.
       Garza
    transported the trailer at an unusual time, the purported recipient was not
    expecting the delivery, and the purported destination was located near Garza’s
    property. The value of the drugs being transported, $577,192, is also probative
    of Garza’s knowledge because the jury could reasonably have inferred that Garza
    would not have been entrusted with extremely valuable cargo if he was not part
    of the conspiracy. See United States v. Villarreal, 
    324 F.3d 319
    , 324 (5th Cir.
    2
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    No. 09-41158
    2003). Therefore, there was sufficient evidence that Garza knew the trailer
    contained marijuana to support his convictions. See 
    id. at 324-25
    .
    Garza also argues that the prosecutor engaged in various acts of
    misconduct. Garza contends that the prosecutor introduced evidence of his prior
    conviction in a misleading manner.        Evidence of the prior conviction was
    admissible, and the prosecutor accurately described the conviction. Because
    Garza has failed to show that the prosecutor’s remarks were improper, he has
    failed to show error in this regard. See United States v. McCann, 
    613 F.3d 486
    ,
    494-95 (5th Cir. 2010).
    Next, Garza contends that the prosecutor improperly referred to his co-
    defendant’s guilty plea.    The Government introduced the plea for a proper
    purpose, and the district court issued cautionary instructions regarding
    accomplice testimony.       Garza, who is represented by counsel, waived
    consideration of the prosecutor’s remarks that he contends imputed the co-
    defendant’s guilty knowledge to him by virtue of inadequate briefing. See United
    States v. Reagan, 
    596 F.3d 251
    , 254-55 (5th Cir. 2010). Having failed to show
    that the plea was improperly introduced or that the prosecutor’s remarks
    regarding the plea were improper, Garza has also failed to show error in this
    regard. 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
    .
    Last, Garza contends that the prosecutor improperly relied on a drug
    courier profile as substantive evidence of his guilty knowledge. Even if the
    prosecutor’s remarks were improper, any possible prejudicial effect was minimal.
    The remarks identified by Garza consisted of 11 lines in a 17-page closing
    argument. The district court instructed the jury that arguments by counsel are
    not evidence and that the case was to be decided solely on the evidence, helping
    to mitigate any possible prejudice. Furthermore, as set forth above, the evidence
    was sufficient to sustain the convictions. Because Garza has failed to show that
    3
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    No. 09-41158
    his substantial rights were affected by the prosecutor’s remarks, he has failed
    to show error in this regard as well. See McCann, 
    613 F.3d at 496
    .
    The judgment of the district court is AFFIRMED.
    4
    

Document Info

Docket Number: 09-41158

Citation Numbers: 398 F. App'x 985

Judges: Owen, Per Curiam, Prado, Wiener

Filed Date: 10/27/2010

Precedential Status: Non-Precedential

Modified Date: 8/3/2023