UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 98-50930 ____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

EZEQUIEL CHAVEZ-SALCIDO,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (P-98-CR-74-2) _________________________________________________________________

November 5, 1999

Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

Having been convicted for importation and possession of

marijuana with intent to distribute, in violation of

(a), 960(a)(1), and 841(a)(1), Ezequiel Chavez-Salcido contests

the sufficiency of the evidence (claims not aware of marijuana

hidden in vehicle in which a passenger) and being denied a “minor

or minimal role” sentencing downward adjustment (claims only

“courier” status). We AFFIRM.

I.

At approximately 6:00 p.m. on Friday, 3 April 1998, Customs

Inspector Insley, inspecting traffic entering the United States

from Mexico at the Presidio, Texas, port of entry, stopped an

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. automobile in which Chavez was a passenger. The driver, Chavez’s

codefendant Luis Contreras-Lara, told the Inspector that he and

Chavez were headed to El Paso; Chavez nodded, indicating agreement.

Because Contreras had to lower his head to answer questions through

the open window and appeared nervous, the Inspector directed the

vehicle to the secondary inspection point. (At trial, the

Inspector testified that the vehicle was “a regular sized car” — “I

think it was a four door Chrysler Labaron” — but that, in order to

respond to the Inspector, Contreras, instead of just looking over

and responding, as “most people” do, had to “lower his head a

little bit and crank it out”; that this, again, “was a little

unusual. I remember him kind of cranking his head ... underneath

the roof a little bit like he was cramped for space.”)

When the Inspector rejoined Chavez and Contreras at the

secondary inspection point, they had exited the vehicle; and

Contreras had opened the trunk to show it was empty. The Inspector

testified that this was unusual, because in such situations, people

usually remain in their vehicles. Customs Inspector Seward

testified that, while at the secondary inspection point, Contreras

and Chavez told him they were going to El Paso (consistent with

what Inspector Insley had been told).

While examining the interior of the vehicle, which was

registered under Contreras’ name, Inspector Insley noticed that the

floorboard was elevated; he lifted the carpet and discovered a

hatch. When a drug-detecting dog alerted, the Inspector had the

vehicle searched.

- 2 - Inspector Insley testified that, when he sat in the driver’s

seat, his knees were elevated “like [he] was sitting on a phone

book”. Special Agent McGraw , a criminal investigator located at

the port of entry, testified that the entire floorboard had been

raised about eight inches, and the passenger seat was “tilted”.

Customs Agents discovered four trap doors leading to a hidden

compartment: one door near the passenger’s feet, one near the

driver’s feet, and two in the back seat floor. They found 62

pounds of marijuana, and seized from Contreras what appeared to be

a drug ledger. (Contreras later pleaded guilty to possession of

the marijuana, and received a 12-month prison sentence, referenced

in part II.B., infra, concerning denial of the downward adjustment

for Chavez.)

As was customary after a drug seizure, Special Agent McGraw,

referenced supra, was immediately dispatched to the scene. Around

6:30 that same evening, Chavez was given a form (in Spanish)

advising him of his rights, which Chavez read, signed, and

indicated he understood. With the assistance of Special Agent

Koker, who had been trained in Spanish, Special Agent McGraw

interviewed Chavez. The Special Agents testified that, during the

interview, Chavez was “extremely nervous”, spoke rapidly, and took

rapid breaths.

Special Agent Koker testified that Chavez told the Special

Agents: that Contreras had approached him the night before

(Thursday night) while Chavez was at work in Chihuahua City, asked

him to go to Denver with him to pick up an income tax refund at a

- 3 - mountain resort where Contreras had worked, and offered to pay for

the trip; that he had known Contreras for about a year; that they

planned to return to Chihuahua City by Sunday morning, because

Chavez had to work that night; and that he (Chavez) was going to

Denver to visit his girlfriend (initially, Chavez could not

remember her last name, not recalling it until an hour later).

Immigration Inspector Cook, who processed Chavez for

deportation at the port of entry around 8:30 that same evening,

testified that Chavez was very inquisitive about what was going to

happen to him; and that Chavez’s questions (in Spanish) translated

into “what happens if I knew it was there”. The Inspector also

testified that, when he asked Chavez whether he knew the marijuana

was in the vehicle, Chavez hesitated, looked down, and swallowed

nervously, before stating that he did not know.

At trial, Chavez testified that Contreras was going to Denver

to purchase an automobile and needed him to return the other

vehicle to Chihuahua City; that, en route to the port of entry, he

(Chavez) did not drive the vehicle or notice anything unusual about

its interior, because he had left work around 5:00 a.m. and had

slept all the way to the port of entry; that he did not take a

change of clothes, because they were not going to stay overnight;

and that he did not bring any money, because his work check had not

been deposited. Chavez denied that either he or Contreras told the

Customs Inspectors that they were going to El Paso.

Chavez moved for judgment of acquittal at the close of the

Government’s case and at the close of all the evidence. A jury

- 4 - convicted him of both importing and possessing marijuana with

intent to distribute.

At sentencing, Chavez made only one objection to the

presentence report (PSR): that he should receive a downward

adjustment for his mitigating role in the offense. The district

court denied the adjustment, adopted the PSR’s findings and

recommendation, and sentenced Chavez, inter alia, to two concurrent

terms of 27 months’ imprisonment.

II.

A.

For the sufficiency challenge, Chavez having timely moved for

judgment of acquittal, we must determine “whether, viewing the

evidence in the light most favorable to the government, a rational

trier of fact could have found the essential elements of the

offense beyond a reasonable doubt”. United States v. Greer,

(5th Cir. 1998) (citing United States v. Bell,

(5th Cir. 1982) (en banc)); see United States v.

Pankhurst,

(5th Cir. 1997). All reasonable

constructions of the evidence are available to the jury, and

neither elimination of each reasonable theory of innocence nor

contradiction of all conclusions other than guilt is required. See

United States v. Lopez,

(5th Cir. 1996) (citations

omitted). In short, we must give credence to “all credibility

choices that tend to support the jury’s verdict”. United States v.

McKenzie,

(5th Cir. 1985) (citations omitted).

- 5 - To convict on both charges, the Government had to prove that

Chavez knowingly brought the marijuana into the United States, and

possessed it with the intent to distribute it. See United States

v. Diaz-Carreon,

(5th Cir. 1990) (citing United

States v. Williams-Hendricks,

(5th Cir. 1986)).

The elements of both offenses may be established by circumstantial

evidence. See United States v. Cardenas,

(5th

Cir. 1993) (possession with intent to distribute); United States v.

Manotas-Mejia,

(5th Cir. 1987) (importation).

Although several defendants can jointly possess a proscribed

substance, either actually or constructively, Cardenas,

(citing United States v. Molinar-Apodaca,

(5th Cir. 1989)), the Government must establish an adequate nexus

between the drugs and the defendant. United States v. Cardenas,

(5th Cir. 1984) (citing United States v. Ferg,

(5th Cir. 1974)). Accordingly, mere presence in a

vehicle where drugs are found, or association with the person who

controls the drugs or vehicle, alone, are not sufficient to

establish possession.

(quoting United States v. Stephenson,

(5th Cir. 1973)). Therefore, for “hidden

compartment cases”, like the one at hand, the Government must

produce “additional evidence indicating knowledge – circumstances

evidencing a consciousness of guilt on the part of the defendant”.

Diaz-Carreon,

(citations omitted; emphasis in

original).

- 6 - Chavez contests the sufficiency of the evidence on only one

element for each of the two offenses — he claims he was not aware

of the concealed marijuana. But, based upon our “commonsense,

fact-specific” review of the earlier described evidence, see United

States v. Smith,

(5th Cir. 1991), including

viewing that evidence in the light most favorable to the Government

(as required by our standard of review), a rational juror could

have concluded, beyond a reasonable doubt, that Chavez knowingly

played a role in bringing the marijuana into the United States and

possessed it with intent to distribute it.

For example, the jury was shown a videotape, produced by Agent

McGraw, in which an Agent, approximately the same height as Chavez,

sat in the front seat of Contreras’ vehicle and stated that his

head was touching the vehicle’s ceiling. A rational juror could

reasonably infer that, at some point en route to the border, Chavez

would have asked about the vehicle’s unmistakably altered

dimensions. In short, the jurors were entitled to reject Chavez’s

testimony that he slept the entire trip to the port of entry and

never noticed the elevated seats. See United States v. Mulderig,

(5th Cir. 1997) (quoting United States v. Ayala,

(5th Cir. 1989) (permissible for jurors to “rely on

their ‘common sense’ and ‘knowledge of the natural tendencies and

inclinations of human beings’”)).

Other evidence supporting Chavez’s knowing about the marijuana

included: his contradictory statements regarding his destination

(first El Paso, then Denver); his story that he was traveling to

- 7 - Denver to see his girlfriend, in the light of his inability to

remember her last name and failure to bring money or a change of

clothing; the difficulty of making a round trip between Friday and

Sunday, as Chavez claimed, and still being able to spend time with

his girlfriend in Denver, given the estimated 15-20 hour drive from

Chihuahua City, Mexico, to Denver, Colorado; his nervous appearance

when questioned; his hesitation before denying knowledge of the

drugs; and his repeated inquiries about the consequences if he had

known about the drugs’ presence. See Diaz-Carreon,

(nervousness, conflicting statements to inspection

officials, and implausible story may adequately establish

consciousness of guilt); United States v. Pennington,

(5th Cir. 1994) (“circuitous route” and timing of trip

supported conclusion defendants possessed marijuana).

Again, Chavez claims, for his sufficiency challenge, only non-

awareness of the marijuana. In short, this is a classic jury

issue. For example, as discussed, two Government witnesses

testified that Chavez had indicated (to one) and stated (to the

other) that his destination was El Paso (not Denver); in his

testimony, Chavez denied doing so. As stated, viewing the

evidence, as we must, in the light most favorable to the

Government, a rational juror could have found, beyond a reasonable

doubt, that Chavez was aware of the marijuana.

B.

In claiming entitlement to the minor or minimal participation

adjustment under Guideline § 3B1.2, Chavez states that the

- 8 - commentary applies to this case, § 3B1.2 commentary, n.2

(suggesting adjustment “where an individual was recruited as a

courier for a single smuggling transaction involving a small amount

of drugs”); and notes that Contreras, who owned the vehicle and

admitted ownership of the marijuana, received a significantly

lesser sentence than he.

But, to qualify for the adjustment, Chavez had to show that he

was “substantially less culpable than” Contreras. Id. at

background n.; see, e.g., United States v. Buenrostro,

(5th Cir. 1989) (Ҥ 3B1.2 turns upon culpability, not

courier status”) (emphasis added). Factual determinations

regarding Chavez’s role are reviewed only for clear error. E.g.,

United States v. Zuniga,

(5th Cir. 1994)

(citation omitted).

At sentencing, Chavez contended that, because Contreras

accepted responsibility for, and claimed ownership of, the

marijuana, Contreras was primarily to profit from it; that, at

most, Chavez was only along to help drive; that it was unfair for

him to receive a sentence twice as long as Contreras’; that he had

no history of drug trafficking or other criminal involvement; and

that he had steadfastly maintained his innocence.

The district court considered this evidence, as well as (1)

Contreras’ statement to the probation officer (included in Chavez’s

PSR) that Chavez was aware of the drugs, and (2) the jury’s similar

finding concerning Chavez’s awareness. The district judge found no

differentiation between the roles of Chavez and Contreras.

- 9 - Based on our review of the record, the court did not clearly

err in finding that Chavez was not “substantially less culpable”

than Contreras. The downward adjustment denial must stand.

III.

For the foregoing reasons, the judgment is

AFFIRMED.

- 10 -