IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50185 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMILIO GODINES; ADRIAN AYALA-MORENO,

Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas USDC No. SA-00-CR-354-3

October 17, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Emilio Godines and Adrian Ayala-Moreno (“Ayala”) were

convicted by a jury of conspiring to possess and aiding and

abetting the possession with the intent to distribute

methamphetamine, in violation of

(a)(1) and 846 and

. Godines and Ayala each challenges the sufficiency

of the evidence to support his conviction. Specifically, each

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. argues that the evidence was insufficient to demonstrate that he

was aware of the methamphetamine hidden in the vehicle in question.

Ayala contends that his testimony established his lack of

knowledge of the drugs hidden in the car and offered a reasonable

explanation of his innocence. He concedes that cooperating

codefendant Ruben Buenfil’s testimony tended to show that Ayala

exercised some control over the drug-laden vehicle but asserts that

there was no other circumstantial evidence of guilty knowledge to

support his conviction.

In reviewing a challenge to the sufficiency of the evidence,

we must determine whether a rational jury could have found that the

evidence established guilt beyond a reasonable doubt on each

element of the offense, drawing all reasonable inferences from the

evidence and viewing all credibility determinations in the light

most favorable to the verdict.1 We do not evaluate the weight of

the evidence or the credibility of the witnesses.2 If this review

of the evidence gives equal or nearly equal circumstantial support

to a theory of guilt and a theory of innocence of the offense

charged, we are required to reverse.3 On the other hand, the

evidence presented need not exclude every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except

1 United States v. Barton,

(5th Cir. 2001). 2 United States v. Delgado,

(5th Cir. 2001). 3 Barton,

.

2 that of guilt, and we have noted that the jury is free to choose

among reasonable constructions of the evidence.4

The evidence, when viewed in the light most favorable to the

government, establishes that a reasonable jury could find beyond a

reasonable doubt that Ayala had guilty knowledge. That Ayala

offered an explanation of his innocence is of no moment.5

Moreover, the jury clearly did not credit his testimony denying

knowledge of the drugs, and this court will not disturb the jury’s

credibility determination.6 The evidence demonstrated that Ayala

and his girlfriend owned the vehicle in which the drugs were

hidden; that Ayala offered Buenfil $1,000 to drive the car across

the border; that Ayala made arrangements to pick Buenfil up, meet

Godines, and deliver the vehicle; that Ayala provided Buenfil with

instructions for delivering the car in Texas and left a cell phone

contact number in case Buenfil got lost; that Ayala stated, in

response to Buenfil’s questions about what was in the car, that he

did not care if someone ended up in jail; and that, when Ayala

later reclaimed the vehicle from Buenfil, Ayala drove erratically

at high rates of speed, apparently attempting to overtake Buenfil

4 United States v. Ortega Reyna,

(5th Cir. 1998). 5 See id.; see also United States v. Lage,

, 382- 83 (5th Cir. 1999), cert. denied,

(2000); United States v. Bustamante,

(5th Cir. 1995). 6 See Delgado,

.

3 after discovering that the methamphetamine was not in the hidden

compartment. The record thus supplies circumstances sufficiently

evidencing a consciousness of guilt on Ayala’s part.7 His

insufficiency claim therefore fails, and his conviction is

AFFIRMED.

Godines’s insufficiency argument is similarly unavailing. His

challenge is based on the fact that Ayala and Buenfil gave

conflicting testimony. Godines specifically challenges Ayala’s

testimony, asserting that it is incredible on its face.

Contrary to Godines’s assertions, the evidence, when viewed in

the light most favorable to the government, is sufficient to

support Godines's conviction. There was evidence introduced at

trial to show that Godines delivered the car in which the

methamphetamine was hidden to the meeting place to turn over to

Buenfil; that Godines owned the cell phone that was used as the

contact number for Buenfil while driving the car across the border;

that the car carrying the methamphetamine was ultimately delivered

to Godines's residence; and that Godines became very nervous after

Buenfil delivered the car without the methamphetamine, reaching

into the secret compartment and calling someone to report that the

car had arrived “without the merchandise.” Godines urges that

because the jury discredited a portion of Ayala’s testimony related

7 Cf. United States v. Mendoza,

(5th Cir. 2000); United States v. Williams-Hendricks,

, 500- 01 (5th Cir. 1986).

4 to Ayala's own claim of innocence, the rest of Ayala’s testimony,

particularly that which implicated Godines, cannot be credited. He

is incorrect: a jury is free to choose to believe part of a

witness's testimony without believing all of that witness's

testimony.8 Godines has not demonstrated that Ayala's testimony

was insubstantial or incredible on its face and thereby

insufficient to sustain his conviction.9

Godines additionally argues that the trial court erred in

sustaining Ayala’s objection to the admission into evidence of

Buenfil’s plea agreement and in failing to strike a statement

Buenfil made at trial to the effect that Buenfil was afraid of

Godines. We review a district court's evidentiary rulings for

abuse of discretion only,10 but in the context of a criminal trial,

our review is necessarily heightened, such that we examine what

effect the alleged error had or reasonably may be taken to have had

upon the jury's decision.11 If we find an abuse of discretion in

the admission or exclusion of evidence, however, we review the

error under the harmless error doctrine, and we must affirm an

8 See United States v. Pruneda-Gonzalez,

, 196 n.9 (5th Cir. 1992). 9 See United States v. Lopez,

(5th Cir. 1996); United States v. Gardea Carrasco,

(5th Cir. 1987). 10 United States v. Loe,

(5th Cir. 2001). 11 United States v. Nutall,

(5th Cir. 1999), cert. denied,

(2000).

5 evidentiary ruling unless it affects a substantial right of the

complaining party.12 Under the harmless error doctrine, we view the

error in relation to the entire proceedings and decide if the

inadmissible evidence actually contributed to the jury's verdict.13

Our review of the record indicates that Godines has not

demonstrated that the district court abused its discretion in

making these evidentiary rulings. Moreover, Godines was able to

cross-examine Buenfil about the statement that Buenfil was afraid

of Godines and about the contents of Buenfil's plea agreement. Any

error, therefore, which might have occurred in refusing to admit

the written agreement itself and in refusing to strike Buenfil's

statement that he was afraid of Godines was harmless in the context

of the entire proceedings.

Godines also challenges his sentence, urging that the district

court should have sentenced him to the low end of the guidelines

range and should have awarded him a four-level reduction, pursuant

to U.S.S.G. § 3B1.2, for being a minimal participant. There is no

authority by which a defendant may challenge where his sentence

fell within a properly-calculated guidelines range.14 The defendant

bears the burden of proving his role as a minimal participant in

12 United States v. Haese,

(5th Cir. 1998). 13 United States v. Skipper,

(5th Cir. 1996). 14 See United States v. O’Banion,

(5th Cir. 1991).

6 the offense by a preponderance of the evidence.15 Whether Godines

was a minimal participant entitled to a four-level reduction

pursuant to U.S.S.G. § 3B1.2(a) is a factual determination that we

review only for clear error.16 The commentary to section 3B1.2

makes clear that a defendant's lack of knowledge or understanding

of the activities of others is indicative of a role as a minimal

participant.17 Godines has not established that the district

court’s determination that he was not a minimal participant was

clear error, and his argument that he was entitled to a four-level

reduction fails. Godines's reliance on the shortcomings that he

perceives in the evidence contained in the PSR of his culpability

is misplaced, because the district court was free to consider the

evidence presented at trial in deciding whether to grant Godines's

request for a four-level reduction as a minimal participant.18 On

the facts in the record before us, the district court did not err

in determining that Godines was not a minimal participant under

section 3B1.2. Godines’s conviction and sentence are AFFIRMED.

15 United States v. Brown,

(5th Cir. 1995). 16 United States v. Becerra,

(5th Cir. 1998). 17 U.S.S.G. § 3B1.2, cmt. n.1 (1998). 18 See United States v. Montes,

(5th Cir. 1992).

7