United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 1, 2006

Charles R. Fulbruge III Clerk No. 05-40009 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EVLYN RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (5:04-CR-1217-ALL) --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

A jury convicted Defendant-Appellant Evlyn Rodriguez of

conspiracy to possess with intent to distribute and possession with

intent to distribute less than fifty kilograms of marihuana, in

violation of

and

(a)(1) and (b)(1)(D).

Rodriguez contends that the evidence was insufficient to support

her conviction and that the district court committed reversible

error under United States v. Booker,

(2005), when it

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. sentenced her under the mandatory Guidelines regime that was found

unconstitutional in Booker.

As Rodriguez properly preserved the sufficiency issue by

moving for a judgment of acquittal on both indictment counts at the

close of the government’s case and at the close of all evidence, we

review this issue de novo. See United States v. Izydore,

(5th Cir. 1999). In evaluating sufficiency of evidence,

we view all evidence and all reasonable inferences drawn from it in

the light most favorable to the verdict.

Circumstantial evidence adduced at Rodriguez’s trial

established “1) the existence of an agreement between two or more

persons to violate federal narcotics laws; 2) the defendant’s

knowledge of the agreement; and 3) the defendant’s voluntary

participation in the agreement.” See United States v. Gonzales,

(5th Cir. 1996). Evidence also indicated that

Rodriguez knowingly possessed with intent to distribute the

controlled substance. See United States v. Solis,

(5th Cir. 2002).

When we view it in the light most favorable to the verdict,

the evidence establishes that at least three people —— Rodriguez,

Erasmo Gallegos, and “Ricky” —— were involved in an agreement to

violate federal narcotics laws. Gallegos, Rodriguez’s co-worker,

borrowed their boss’s vehicle so that Gallegos could make a trip

from the vicinity of Arlington, Texas to Laredo. While driving

that vehicle alone on the following day Rodriguez was stopped at a

2 checkpoint. In the vehicle’s undercarriage, bundles of marihuana

weighing in the aggregate approximate 22.9 kilograms were found.

Gallegos’s had told his boss that the vehicle was being

borrowed to visit his sick grandmother. She continued the sick-

grandmother theme first when Rodriguez told one of the agents at

the checkpoint that she had traveled from Arlington to Laredo to

visit her sick grandmother, and again when she told a different

agent that she went to Laredo to visit Gallegos’s sick grandmother.

The inconsistencies in the stories also indicate that Rodriguez was

either nervous or lying to law enforcement personnel, both of which

are indicative of knowing participation in an agreement to break

the law. See United States v. Paul,

(5th Cir.

1998).

As for knowledge of the existence of the conspiracy and the

presence of marihuana in the vehicle, the value of the marihuana

concealed in the undercarriage was between $200 to $700 per pound.

A jury could infer that a drug smuggler would not be likely to

entrust such a large quantity of drugs to a person with no

knowledge of their presence. See United States v. Ramos-Garcia,

(5th Cir. 1999). Furthermore, several law

enforcement officials testified that Rodriguez appeared to be

nervous while the vehicle was being inspected at the checkpoint.

From this testimony, the jury could infer that Rodriguez’s

nervousness was the result of her knowledge of (1) the presence of

the contraband in the vehicle, and (2) the likelihood that it would

3 be discovered. See United States v. Jones,

(5th

Cir. 1999). Such a large quantity of the controlled substance is

indicative that Rodriguez was acting with the intent to distribute

it. See United States v. Prieto-Tejas,

(5th

Cir. 1986).

Additionally, Rodriguez’s statements implicated “Ricky” as a

third person in the conspiracy. Rodriguez told officials that

while she was in Laredo, she met Ricky, who told her that the

taillight on the vehicle was broken. Rodriguez told the officials

that she let Ricky take the vehicle for an hour to have the

taillight fixed. In contradiction, however, the government

produced testimony indicating that the vehicle’s taillights were in

working order before Gallegos took the vehicle. Also, it is

unlikely that a person would allow an unaccompanied stranger, whose

last name she did not know, to take her boss’s vehicle to get it

fixed.

Additional evidence establishes that Rodriguez took an

indirect route from Laredo to return to Arlington. This justifies

an inference that she did so for the purpose of avoiding

apprehension.

We conclude from all this that the jury acted rationally in

determining that Rodriguez was an active participant in the

conspiracy to transport the drugs and that she was attempting to

avoid detection. See United States v. Lopez-Urbina, F.3d ,

(5th Cir. Aug. 15, 2005) (this court does not

4 consider whether the jury correctly determined guilt or innocence

but rather whether the jury’s decision was rational). The jury

also acted rationally in concluding that Rodriguez knowingly

possessed marijuana with the intent to distribute it. See

Thus, the evidence was sufficient to support Rodriguez’s

conviction.

Turning to Rodriguez’s Booker argument, we are convinced that

the district court did commit error when it sentenced Rodriguez

under the pre-Booker, mandatory Guidelines regime. See United

States v. Walters,

(5th Cir. 2005). Conceding

this error, the government nevertheless contends that the error was

harmless. To prevail, the government must prove that such error

was harmless beyond a reasonable doubt.

. The

government’s arguments do not establish that the outcome of the

district court proceedings was not affected by the imposition of

Rodriguez’s sentence under the mandatory Guidelines. See

; United States v. Pineiro,

(5th Cir.

2005) (Booker error). Additionally, the sentencing transcript

reveals that the district court did not provide a clear indication

of how consideration of the Guidelines as mandatory affected

Rodriguez’s sentence. As the government has not shown that the

sentencing judge would have imposed the same sentence under an

advisory sentencing scheme, see Pineiro,

, it has

failed to prove harmlessness beyond a reasonable doubt. Although

5 we affirm her conviction, we vacate Rodriguez’s sentence and remand

the case for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR

RESENTENCING.

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