UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-50355

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LENARD COLEMAN,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (EP-99-CR-549-1-H) _________________________________________________________________ February 12, 2001

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Convicted for possession with intent to distribute, Lenard

Coleman contests the district court’s denying his motion for

judgment of acquittal. We AFFIRM the conviction, but VACATE

Coleman’s sentence and REMAND because, as raised by the Government,

the sentence is erroneous under the Supreme Court’s recent decision

in Apprendi v. New Jersey,

,

(2000).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

In March 1999, Coleman hired Roy Lafayette (Coleman had known

him several years) to accompany Coleman as he drove the tractor

trailer he owned from Mississippi to Phoenix, Arizona. After

making the delivery in Phoenix, they picked up a load of cottonseed

in Eloy, Arizona. The worker who loaded the cottonseed testified

he did not load anything on the truck but cottonseed. Lafayette

testified he thought Coleman was running short on money at the

time.

On 29 March, Coleman and Lafayette stopped at a truck stop in

Vinton, New Mexico; Coleman told Lafayette he was going to “holler

at his [(Coleman’s)] cousin”. Coleman did not invite Lafayette to

accompany him. Coleman departed in his tractor trailer, leaving

Lafayette at the truck stop for 45 minutes to an hour.

Shortly thereafter, when they stopped at a motel, Coleman gave

Lafayette money and told him that, while Lafayette was registering,

he (Coleman) was going to “holler” at his cousin again. But, once

again, he did not ask Lafayette to accompany him. Lafayette

checked into the motel at 11:45 p.m. Because he fell asleep at the

motel, Lafayette was unsure if, while Coleman was absent, he had

the tractor trailer with him. Coleman did not return until around

3:00 a.m.

Before leaving the motel later that morning (30 March 1999),

Coleman checked the truck. Aside from getting something to eat, if

2 he and Lafayette stopped between the motel and the Sierra Blanca

checkpoint (Texas), it was only for a few minutes.

When Coleman drove the truck into that checkpoint, Lafayette

was asleep. (Lafayette testified he (Lafayette) had smoked “a

couple of joints of marijuana”.) While a Border Patrol Agent was

talking with Coleman, the Agent’s drug canine alerted to Coleman’s

trailer. Once inside it, the canine alerted to nine cardboard

boxes loaded between pallets of cottonseed.

When Border Patrol Agents opened the boxes, they found

numerous bundles of marijuana wrapped in black material. The nine

boxes contained approximately 1,300 pounds of marijuana

(approximately 590 kilograms), with an approximate $1.2 million

street value. The bundles had been sprayed with foam to mask the

marijuana odor. Coleman appeared surprised when the Agents found

the marijuana.

Lafayette was called as a witness by the Government. Coleman

did not testify; nor did he put on any evidence. At the close of

the evidence, Coleman moved for a judgment of acquittal under

Federal Rule of Criminal Procedure 29. See FED. R. CRIM. P. 29

(judgment of acquittal if evidence insufficient to sustain

conviction). The motion was denied.

The jury found Coleman guilty of possession with the intent to

distribute marijuana. The district court sentenced him, inter

alia, to 78 months’ imprisonment.

3 II.

Coleman challenges the denial of a judgment of acquittal. The

Government points out the Apprendi error in Coleman’s sentence.

A.

Denial of a judgment of acquittal motion is reviewed de novo.

E.g., United States v. Izydore,

(5th Cir. 1999).

For a timely motion for judgment of acquittal, as in this case, our

standard for reviewing the judgment is more than well-established.

In evaluating the sufficiency of the evidence we must affirm the verdict if a reasonable trier of fact could conclude from the evidence that the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict.

(internal quotation marks omitted). “All credibility

determinations and reasonable inferences are to be resolved in

favor of the verdict.... [I]t is not necessary that the evidence

exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt.” United

States v. Willey,

(5th Cir.) (emphasis added;

internal quotation marks and citations omitted), cert. denied,

(1995).

“A conviction for the offense of possession of marijuana with

intent to distribute requires proof that the defendant (1)

knowingly (2) possessed marijuana (3) with intent to distribute

4 it.” United States v. Meshack,

(5th Cir. 2000)

(emphasis added), cert. denied,

(8 Jan. 2001).

According to Coleman, the evidence of his knowledge was

insufficient.

The knowledge element in a possession case can rarely be established by direct evidence. Knowledge can be inferred from control of the vehicle in some cases; however, when the drugs are hidden, control over the vehicle alone is not sufficient to prove knowledge. This is so because it is at least a fair assumption that a third party might have concealed the controlled substances in the vehicle with the intent to use the unwitting defendant as the carrier in a smuggling enterprise. Thus, it is the general rule in this circuit that where the case involves a hidden compartment, control must be supplemented by other circumstantial evidence that is suspicious in nature or demonstrates guilty knowledge.

United States v. Ramos-Garcia,

(5th Cir. 1999)

(emphasis added; internal quotation marks and citations omitted).

Of course, the same test applies to items concealed in a trailer,

as in the case at hand, as to those in a hidden compartment because

neither are “clearly visible or readily accessible”. See United

States v. Pennington,

(5th Cir. 1994) (“[W]hether

the marijuana was ‘hidden’ in the trailer [will determine if] the

government [must] produce[] further evidence of knowledge.... [T]he

control of the vehicle will suffice to prove knowledge only where

the drugs are clearly visible or readily accessible”. (emphasis

added)).

5 It is not disputed that Coleman owned the tractor trailer and

was driving it on entering the checkpoint. Coleman asserts the

Government failed to supplement its evidence concerning his

control with enough additional circumstantial evidence to establish

guilty knowledge. He maintains the Government presented: little

evidence he had time to load the marijuana; no evidence he was

nervous when the drugs were discovered; and no evidence he and

Lafayette gave conflicting statements.

Concerning the latter, an Agent testified: in his post-arrest

statement, Coleman told the Agent he had no knowledge of the

marijuana; and he was driving from Eloy, Arizona, to Orangeburg,

South Carolina, with a load of cottonseed. These statements are

not inconsistent with Lafayette’s testimony. Coleman asserts his

post-arrest statement was plausible.

As stated in United States v. Del Aguila-Reyes: “It was a

reasonable inference that [the defendant] would not have been

entrusted with ... this valuable cargo ... if he were ... ignorant

of all details surrounding his responsibility and the importance of

the cargo in his care.”

(5th Cir. 1983)

(emphasis added). Needless to say, Coleman’s claim of ignorance is

somewhat implausible and “suspicious in nature”. See Ramos-Garcia,

. It is highly unlikely that, without his

knowledge, he would have been entrusted with drugs worth over $1

million. On the other hand, Del Aguila-Reyes cautioned: “Even this

6 reasonable inference, however, if there were nothing more, might

well not support a finding of guilty knowledge”. Del Aguila-Reyes,

(emphasis added). “But [, as in Del Aguila-Reyes,]

this is not all.”

(emphasis added).

There is ample evidence that Coleman had time to load the

marijuana, given the testimony he left Lafayette for at least 45

minutes at the truck stop and for approximately three hours at the

motel. Furthermore, because Coleman did not ask Lafayette to

accompany him either time he “hollered at his cousin”, a reasonable

juror could infer that Coleman did not want Lafayette to know what

he was doing.

Coleman contests the Government’s failure to fingerprint the

boxes or weigh the truck. Because of the adhesive foam in which

the marijuana was packed, however, the boxes were destroyed simply

by opening and repackaging them. And, the Sierra Blanca checkpoint

has no weighing facilities.

Resolving all reasonable inferences in favor of the verdict,

Coleman’s control of the tractor trailer was supplemented by

circumstantial evidence that was extremely suspicious in nature.

The district court did not err in denying a judgment of acquittal.

B.

In its appellate brief, the Government, to its credit, notes

Coleman’s 78-month sentence is erroneous under Apprendi. Coleman

not only failed to raise this issue in his appellate brief, but

7 also failed to file a reply brief. See, e.g., United States v.

Salazar-Flores, No. 99-50956,

(5th Cir. 25 Jan. 2001)

(direct appeal; parties filed supplemental briefs addressing

Apprendi’s impact).

Generally, “we review only those issues presented to us; we do

not craft new issues or otherwise search for them in the record”.

United States v. Brace,

(5th Cir.) (en banc)

(emphasis added), cert. denied,

(1998). However,

[w]here plain error is apparent, the issue may be raised sua sponte by this court even though it is not assigned or specified. As the Supreme Court has recognized, [i]n exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.... Fairness as well as judicial economy dictate that we address now this issue that would doubtless otherwise be raised in a subsequent habeas proceeding.

United States v. Pineda-Ortuno,

(5th Cir.)

(emphasis added; internal indentation and citations omitted), cert.

denied,

(1992).

Despite Coleman’s failure to raise the issue, for several

reasons we conclude it would “seriously affect the fairness,

integrity or public reputation of judicial proceedings” were we to

ignore the error: first, the Government concedes the sentence was

erroneous under Apprendi; and second, our court has found an

8 Apprendi violation to be “plain error”, Meshack,

(applying plain error review). Thus, plain error is both

“apparent” and “obvious”. Furthermore, judicial economy encourages

consideration, for were we to exercise our discretion to find the

issue forfeited, Coleman almost without doubt would raise it and/or

a related issue (such as ineffective assistance of counsel) in a

proceeding.

Apprendi provides: “Other than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt”. Apprendi,

(emphasis added). In applying this principle, our court recently

concluded: “[I]f the government seeks enhanced penalties based on

the amount of drugs..., the quantity must be stated in the

indictment and submitted to a jury for a finding of proof beyond a

reasonable doubt”. United States v. Doggett,

(5th Cir. 2000), petition for cert. filed, __ U.S.L.W. __ (U.S. 4

Jan. 2001) (No. 00-7819). Coleman’s indictment did not state the

quantity of drugs involved, although the Government gave notice of

its intent to seek enhanced penalties for a quantity of 100

kilograms or more of marijuana.

“In the case of less than 50 kilograms of marijuana

[approximately 110 pounds], ... such person shall ... be sentenced

to a term of imprisonment of not more than [60 months] ....” 28

(b)(1)(D) (emphasis added). In sentencing Coleman, the

district court apparently applied Sentencing Guideline §

2D1.1(a)(3) and (c), under which the base offense level for drug-

trafficking may be determined by the quantity of drugs involved.

See U.S.S.G. § 2D1.1(a)(3), (c). (The drug quantity is considered

“relevant conduct” as defined in § 1B1.3. See § 2D1.1, cmt. 12.)

Under Sentencing Guideline § 2D1.1(c), a defendant receives a base

offense level of 28 if the quantity of marijuana was at least 400,

but less than 700, kilograms (approximately 880 to 1540 pounds).

Applying the Guidelines in this manner led the district court to

sentence Coleman to 78 months, based on a fact that was not proven

beyond a reasonable doubt to the jury. The sentence exceeds the

aforementioned statutory maximum by 18 months.

The Government asserts: even if the sentence is plain error,

it need not be corrected because the amount of drugs involved is

not in dispute. In support, it claims Coleman stipulated at trial

to the quantity. Of course, “once a stipulation is entered, even

in a criminal case, the government is relieved of its burden to

prove the fact which has been stipulated by the parties”. United

States v. Branch,

(5th Cir. 1995).

The Government has misread the stipulation. The stipulation

states simply, inter alia, that, if the Drug Enforcement

Administration’s chemist were present, “he would testify that the

substance seized ... is, in fact, MARIJUANA, and weighs

10 approximately one thousand three hundred and one pounds”. Based on

our reading of this stipulated fact, Coleman stipulated merely that

the chemist would so testify, not to the truth of that testimony.

Accordingly, we vacate Coleman’s sentence and remand this case

to the district court. “Upon remand, the district court could

allow retrial ... or it could resentence [Coleman] at the lowest

statutory drug amount.” Meshack,

; see United

States v. McWaine, No. 99-60265,

(5th Cir. 12

Jan. 2001) (vacating sentence and remanding for proceedings

consistent with Meshack).

III.

For the foregoing reasons, the district court did not err in

denying a judgment of acquittal; therefore, the conviction is

AFFIRMED. However, in the light of Apprendi, the sentence was in

error; accordingly, the sentence is VACATED and this case REMANDED

to the district court for further proceedings consistent with this

opinion.

AFFIRMED IN PART; VACATED IN PART; REMANDED

11