IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41365 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

EDUARDO BRISENO-AVILA

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-398-1 -------------------- January 30, 2003

Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

Eduardo Briseno-Avila appeals from his conviction of

possession with intent to distribute cocaine and importation of

cocaine. He contends that the district court erred by admitting

testimony based on business records that were lacking in

foundation and that the testimony should not have been allowed

without introduction of the records themselves; that the evidence

was insufficient to support his conviction and sentence because

there was insufficient proof that he knew a hidden compartment in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41365 -2-

his vehicle contained a controlled substance and because the

Government failed to prove his knowledge of the type and quantity

of the substance in the hidden compartment; that

and 952 are facially unconstitutional in the wake of Apprendi v.

New Jersey,

(2000); and that the district court

erred by failing to adjust his offense level for his mitigating

role in the offense.

Briseno did not object to Daniel Espinosa-Cruz’s testimony

based on the business records of Kiosko, a Mexican ice cream

company for which Briseno worked. As to Espinosa’s testimony,

Briseno’s contention is reviewed under the plain-error standard.

United States v. Fierro,

(5th Cir. 1994). The

jury could rely on Espinosa’s testimony to conclude that Briseno

did not appear for work on the date of his offense and that he

was not acting on Kiosko’s behalf when he entered the United

States. See Permian Petroleum Co. v. Petroleos Mexicanos,

(5th Cir. 1991).

The district court effectively determined that Enrique

Gonzales-Villapando’s testimony based on Kiosko’s records was

admissible pursuant to FED. R. EVID. 803(6). The admission of

Gonzales’s testimony was at most harmless error, if it is assumed

that it was erroneous at all. United States v. Sharpe,

(5th Cir. 1999). Gonzales’s testimony was cumulative of

Espinosa’s previous testimony based on the records. No. 01-41365 -3-

Briseno did not object at trial that the Kiosko records

themselves were not introduced into evidence. He does not allege

that the business records did not support Espinosa’s and

Gonzales’s testimony or were suspect in any regard. He has not

shown a clear or obvious error regarding those records that

affected his substantial rights. See United States v. Calverley,

(5th Cir. 1994)(en banc).

The jury could have concluded from Espinosa’s and Gonzales’s

testimony that Briseno lied when he told a Federal agent that he

had been sent to the United States on Kiosko business. Briseno’s

dishonesty was sufficient evidence of guilty knowledge to prove

that he knew he carried contraband. See United States v.

Pennington,

(5th Cir. 1994). The Government

need not prove that a defendant had knowledge of the type and

quantity of the controlled substances involved in his offense.

See United States v. Valencia-Gonzales,

(5th

Cir. 1999). Briseno’s sufficiency contentions are unavailing.

Briseno is correct that this court has rejected the

proposition that Apprendi rendered the drug-trafficking statutes

facially unconstitutional. United States v. Slaughter,

, 582 (5th Cir. 2000), cert. denied,

(2001).

Briseno raises the issue to preserve it for possible review by

the Supreme Court.

The district court did not err by denying Briseno an

adjustment for a mitigating role. There is no indication in the No. 01-41365 -4-

record that anybody else was involved in Briseno’s offense. See

U.S.S.G. § 3B, introductory commentary; U.S.S.G. § 3B1.2,

comment. (n.2).

AFFIRMED.