United States v. Gerardo Rivera

Court Case Details
Court Case Opinion

Case: 09-41082 Document: 00511631987 Page: 1 Date Filed: 10/13/2011



United States Court of Appeals

Fifth Circuit


October 13, 2011

No. 09-41082

Lyle W. Cayce







Appeal from the United States District Court for the

Southern District of Texas

USDC No. 2:04-cr-530

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.



In this criminal appeal, Defendant-Appellant Gerardo Gilberto Rivera

challenges his conviction and sentence for possession with intent to distribute

methamphetamine. For the following reasons, we AFFIRM.







On September 22, 2004, Rivera was indicted on one count of possession

with intent to distribute more than 500 grams of methamphetamine in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A). A three-day jury trial commenced on


Pursuant to F



47.5, the court has determined that this opinion




should not be published and is not precedent except under the limited circumstances set forth







Case: 09-41082 Document: 00511631987 Page: 2 Date Filed: 10/13/2011

No. 09-41082

November 15, 2004. The majority of the government’s case consisted of

testimony by Border Patrol agents and Drug Enforcement Administration Task

Force (“DEA”) officers. Beyond Rivera himself, Rivera’s nineteen-year-old

daughter Sonja, Sonja’s boyfriend, and a character witness testified for the


The evidence presented at trial was as follows: In the early morning of

Sunday, September 5, 2004, Rivera drove a 1998 white GMC Yukon (“Yukon”)

to the Border Patrol checkpoint in Sarita, Texas. Rivera was accompanied by his

cousin-in-law, Carlos Soto-Torres (“Soto”). Border Patrol Agents Martinez and

Salas were on duty at the Sarita checkpoint when Rivera arrived at

approximately 3:45 a.m. In response to routine questions, Rivera stated that he

was a United States citizen, that the Yukon belonged to him, and that he was

traveling to Houston to purchase vehicles. Agent Martinez grew suspicious of

Rivera because he avoided eye contact and had a “death grip” on the steering


After Rivera gave Agent Martinez permission to inspect the vehicle, Agent

Martinez opened the rear driver’s side door and looked under the seat. He

observed that the bolt that secured the rear seat to the floor had tool markings.

Meanwhile, Agent Salas, a canine handler, conducted a “free-air sniff” of the

Yukon with his dog. The dog alerted to the presence of drugs at the rear

undercarriage of the Yukon. Agent Martinez then got permission from Rivera

to search his car in the secondary inspection area.

The agents observed that the Yukon was altered in several ways. The

underside rear of the Yukon had a shiny unpainted and un-scratched area, had

new screws, and the body of the vehicle had been raised from the frame. Upon

lifting the carpet in the cargo area of the Yukon, Agent Salas saw fresh silicone

or caulking, and noticed a chemical smell. He discovered a compartment

underneath the floorboard behind the rear seat, accessible through a false floor


Case: 09-41082 Document: 00511631987 Page: 3 Date Filed: 10/13/2011

No. 09-41082

and trap door. Inside the compartment were thirty-seven bundles of

methamphetamine, worth $1.7 million, packed in Mexican-made

Tupperware-type containers wrapped in plastic. Also inside the Yukon was a

toolbox with two of three tools necessary to access the trap door; the third tool

was readily available at a hardware or auto parts store.

After the agents’ discovery of the compartment, Defendant-Appellant

Rivera and Soto were placed under arrest. Border Patrol Agent Solis, a twelve-

year veteran of the U.S. Border Patrol and a supervisor at the Sarita checkpoint,


interviewed Rivera, but no recording or written statement was made. Rivera

told Agent Solis that he was en route to Houston to purchase cars and that he

had no knowledge of the drugs in the Yukon. In Agent Martinez’s presence,

Rivera told Agent Solis that he had personally purchased the Yukon in Dallas

about a month ago, but that he could not remember the name or address of the

car lot or dealership. When Agent Solis told Rivera that the DEA would

subpoena the seller of the vehicle to identify the purchaser, Rivera stated that

he did not actually personally travel to Dallas to purchase the vehicle. Rather,

his friend Vicente Flores (“Vicente”), who lived in Mexico, had purchased the

vehicle in Dallas and brought it to Brownsville for Rivera.

In the evening of the same day, DEA Officers Bussey and Pacheco and

Border Patrol Agent Baron took over the investigation and questioned Rivera,


without making a recording or preparing a written statement. Officer Bussey

testified at trial that Rivera gave the following version of events during this

interview: Rivera told them that a month earlier he had purchased the Yukon

from his friend Vicente. He denied that he had told Agent Solis that he had gone

to Dallas and purchased the Yukon himself. Rivera explained that Vicente was


The interview was conducted in Spanish.


Officer Bussey conducted the interview in English while Officer Pacheco and Agent

Baron translated into Spanish.


Case: 09-41082 Document: 00511631987 Page: 4 Date Filed: 10/13/2011

No. 09-41082

a used car salesman, and that Rivera had offered to purchase Vicente’s Yukon


in July 2004 for $6,900. Vicente registered the Yukon in Rivera’s name and

delivered it to Rivera in Brownsville. According to the agents’ testimony at trial,

though Rivera had told Agent Solis that Vicente’s last name was Flores, to

Officer Bussey he stated that he did not know Vicente’s last name, phone

number, or address.

The agents were skeptical of Rivera’s claim that he was en route to pick

up a car with the Yukon because the vehicle lacked the standard equipment for

that business – a tow bar. Additionally, Officer Bussey testified that Rivera

could not provide the name or location of the vehicle auction or parking lot to

which he was en route. Agents Martinez and Solis, and Officers Bussey and

Pacheco all testified that they found Rivera’s demeanor suspicious during


When he took the stand at trial, Rivera testified that he did not agree to

a drug transaction with Vicente and that he did not know drugs were in his

vehicle. Rivera denied telling the officers that he had bought the Yukon in

Dallas. Rather, he insisted that he told them that the vehicle was purchased in

Dallas and then brought to Brownsville. Rivera also testified that he gave

Vicente’s last name to the officers; that he told them the location of the lot where

he was to meet Vicente in Houston – a parking lot by a Days Inn; that he had

Vicente’s number in his phone, but the screen had broken; and that he knew

where Vicente lived, but not the address. Regarding his demeanor at the

checkpoint, he denied that he had acted nervously and averted eye contact.

Rivera’s statements to the agents and at trial regarding his whereabouts

on September 4 were inconsistent. He had told Officer Bussey that he drove to


Rivera owed Vicente a balance of $450, but could not explain how he would contact

him, other than to meet him at a parking lot in Houston that day as he said they had planned
to do.


Case: 09-41082 Document: 00511631987 Page: 5 Date Filed: 10/13/2011

No. 09-41082

Mexico on September 4, 2004 in his red Plymouth Breeze, leaving his home in

Brownsville at about 10:00 a.m. and returning at about 10:30 p.m. that same

day. At trial, however, he testified that on September 4, 2004, he left his home

around 11:00 a.m. or noon and drove his Breeze to a McAllen car lot, where he

purchased a car. He said that he returned home around 3:30 p.m. or 4:00 p.m.

After 5:00 p.m., Rivera’s son and Sonja’s boyfriend borrowed the Yukon to go to

the mall, according to both Rivera’s and Sonja’s testimony.

Certain aspects of Rivera’s version of events did remain consistent. He

repeatedly said that he received the Yukon and the registration papers from

Vicente sometime between August 7 and 11, and that about two weeks later, he

re-registered the Yukon and changed its license plates in Brownsville. By all

accounts, he also consistently stated that Vicente had borrowed the Yukon on

Thursday, September 2, 2004, and returned it on Friday, September 3, 2004, at

around 6:00 p.m. During questioning by Officer Bussey and at trial, Rivera said

that between 5:00 p.m. and 6:00 p.m. on September 4, he drove the Yukon to an


autoparts store in Brownsville. In addition, Rivera’s statements and Soto’s

testimony were consistent that he picked up Soto in Mexico around midnight on

September 4, and then returned to his home in Brownsville, where they got into

the Yukon.

At the close of the government’s case, and again after the government’s

rebuttal, Rivera moved for judgment of acquittal based on insufficiency of the

evidence. The district court denied the motion both times. After deliberating for

one-and-a-half days, and sending five jury notes, the jury found Rivera guilty as


Within seven days of the jury verdict, Rivera filed a motion for new trial

pursuant to Fed. R. Crim. P. 33(b)(2), based on the prosecutor’s erroneous


This despite Rivera having also told Officer Bussey that he was in Mexico all day on

September 4.


Case: 09-41082 Document: 00511631987 Page: 6 Date Filed: 10/13/2011

No. 09-41082

statement at closing argument that the evidence proved Rivera had not

registered the Yukon in Brownsville.

On June 9, 2005 the district court sentenced Rivera to 235 months in

prison followed by five years of supervised release. At the sentencing hearing,

Rivera’s counsel argued that the Pre-sentence Report’s (“PSR) recommended

sentence was greater than necessary to meet the goals of sentencing.

Rivera appealed his conviction and sentence on June 17, 2005, but this

Court dismissed his appeal for failure to timely pay the docketing fee. On

October 21, 2005, the district court issued a written order stating its reasons for

denying Rivera’s motion for a new trial.

In February of 2006, the district court sent notice that the trial exhibits

would be destroyed unless the parties removed them by February 28. The

government withdrew its exhibits, but defense counsel did not respond, and the

defense’s trial exhibits were destroyed.

Rivera filed a pro se petition for a writ of habeas corpus on April 24, 2009,

arguing that his trial counsel had been ineffective for failing to prosecute his

appeal and failing to inform him that his appeal had been dismissed. After an

evidentiary hearing, the district court re-entered its judgment against him and

dismissed his petition without prejudice. Rivera timely appealed the dismissal

of his petition for a writ of habeas corpus. On March 31, 2010, this Court

granted Rivera’s unopposed motion to remand the case to the district court for

the purpose of reconstructing the missing trial exhibits. The parties were unable

to reconstruct any of the defendant’s trial exhibits, but did manage to do so for


some of the government’s trial exhibits.


While the government’s trial exhibits had not been destroyed, many of them were

missing when Rivera filed his motion for a writ of habeas corpus.


Case: 09-41082 Document: 00511631987 Page: 7 Date Filed: 10/13/2011

No. 09-41082



Rivera makes four arguments in support of his appeal. First, he maintains

that the destruction of a substantial portion of the trial exhibits prior to this

appeal, including all of the defense exhibits, requires reversal of his conviction

and a new trial. Second, he argues that the evidence was insufficient to sustain

a conviction. Third, he contends that the district court abused its discretion

when it denied Rivera’s motion for a new trial based on the prosecutor’s

misstatement of evidence outside the record during closing arguments. Fourth,

he claims that the district court imposed an unreasonable sentence. This Court

will address Rivera’s arguments in turn.

1. Destruction of Exhibits

Rivera contends that the omission of all nine defense exhibits and twenty-

five government exhibits constitutes “substantial and significant” omissions from

the record, requiring reversal. The government responds that the absence of

these exhibits is not a substantial or significant omission in the record because

the record still contains the information found in the missing exhibits. The

government’s argument prevails.

If a defendant is represented by different counsel on appeal than at trial,

the absence of a “substantial and significant portion of the record” is sufficient

to warrant reversal for a new trial. United States v. Selva, 559 F.2d 1303, 1306

(5th Cir. 1977) (reversing conviction because the record did not contain a

transcript of the closing arguments made by defense or government counsel at

trial, and information about the closing arguments was unavailable to the

attorney on appeal). “There can be no substantial and significant omissions from

a reconstructed record if, taken as a whole, it accords effective review on appeal.”

United States v. Preciado-Cordobas, 981 F.2d 1206, 1213 (11th Cir. 1993). “We

do not advocate a mechanistic approach to situations involving the absence of a

complete transcript of the trial proceedings. We must, however, be able to


Case: 09-41082 Document: 00511631987 Page: 8 Date Filed: 10/13/2011

No. 09-41082

conclude affirmatively that no substantial rights of the appellant have been

adversely effected by the omissions from the transcript.” Selva, 559 F.2d at

1306. Litigants in such a position “are under no burden to show specific

prejudice in order to obtain relief.” Id. at 1305 (explaining no showing of

prejudice is required since the new attorney on appeal cannot tell if an error was

made during the earlier, unrecorded proceedings).

In this case, the nine missing defense exhibits consist of photographs of

the Yukon and its secret compartment. The twenty-five missing government

exhibits include a stipulation of laboratory reports; photographs of the stacked

drugs, the truck and its compartment, and relevant tools and hardware; the

actual tools and hardware; and a chart of the Border Patrol area. The

reconstructed record contains several photographs of the Yukon’s cargo area and

compartment, and thus the absence of those Rivera exhibits is not significant.

In addition, Rivera acknowledges that defense counsel cross-examined the

agents extensively on the hidden compartment and the appearance of the rear

interior of the Yukon where the compartment was found, and that testimony is

in the record. The agents stated that the rear of the Yukon was virtually

indistinguishable from one which has not been altered.

Rivera argues that the fact that defense counsel cross-examined the

government’s witnesses regarding the Yukon indicates that the exhibits’

omission is substantial. This claim is premised on the mistaken understanding

that “the missing exhibits were used to prove an element of the

offense–knowledge–that went to the heart of the government’s case and Mr.

Rivera’s defense.” However, the government’s witnesses conceded that the

compartment was almost undetectable, and the government does not argue that

obvious alterations to the Yukon were one of the factors indicating guilty

knowledge. Thus, the appearance of the compartment, and by extension the

Yukon itself, did not play a significant or substantial role in the jury’s


Case: 09-41082 Document: 00511631987 Page: 9 Date Filed: 10/13/2011

No. 09-41082

determination that Rivera knew that he was transporting drugs. Furthermore,

the available record contains ample information regarding the compartment’s

placement and appearance in the Yukon. Thus, the exhibits’ omission is neither

substantial nor significant. See United States v. Gieger, 190 F.3d 661, 667 (5th

Cir. 1999) (finding that omission from the record of seventy-two bench

conferences during the course of trial was not a substantial and significant

omission because the conferences were administrative in nature, “permitted to

allow further argument on evidentiary objections,”and “[o]bjections to the court’s

rulings following these bench conferences [made] the arguments leading up to

the rulings unimportant to the record on appeal,” or concerned counts for which

the defendants were acquitted); Preciado-Cordobas, 981 F.2d at 1214 (finding

that, where missing parts of the record were adequately reconstructed, “[m]ere

speculation, entirely unsupported or contradicted by the record, that error may

have been committed during an unrecorded part of the trial simply is not enough

to support a finding that omissions are substantial and significant.”).

Rivera also claims that this Court cannot review the sufficiency of the

evidence without considering all of the evidence presented at trial. If that were

the rule, then Selva and its progeny would not exist, because the absence of any

portion of the record would automatically require reversal. What Rivera really

wants is not for this Court to review the sufficiency of the evidence, but to re-

evaluate that evidence and find that the jury’s verdict was wrong. However, it

is not our place to reweigh the evidence, and “[w]e must not substitute for the

jury’s reasonable factual inferences other inferences that we may regard as more

reasonable.” McBeth v. Carpenter, 565 F.3d 171, 176 (5th Cir. 2009).

Though cases do not usually involve the loss of so many exhibits, the

quantity of missing exhibits is irrelevant to the question of significance and

substantiality. Here, the record as a whole affords effective appellate review.


Case: 09-41082 Document: 00511631987 Page: 10 Date Filed: 10/13/2011

No. 09-41082

We thus find that reversal is unnecessary on the ground of destruction of


2. Sufficiency of the Evidence

Rivera next argues that the district court erroneously denied his motion

for judgment of acquittal, because the evidence presented at trial was

insufficient to prove beyond a reasonable doubt that he had knowledge of the

drugs hidden in the Yukon. The government responds that the circumstantial

evidence of Rivera’s knowledge of the drugs was sufficient; we agree.

This Court “review[s] de novo the district court’s denial of a motion for

judgment of acquittal.” United States v. Carbajal, 290 F.3d 277, 289 (5th Cir.

2002). The Court must “examin[e] the evidence and all reasonable inferences

drawn therefrom in the light most favorable to the verdict, and ask[] whether a

rational trier of fact could have found the element of knowledge of possession

beyond a reasonable doubt.” United States v. Gonzalez-Rodriguez, 621 F.3d 354,

360 (5th Cir. 2010). See also Jackson v. Va., 443 U.S. 307, 319 (1979) (“[T]he

relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”). “The evidence

need not exclude every reasonable hypothesis of innocence and the jury is free

to choose among reasonable interpretations of the evidence.” United States v.

Brugman, 364 F.3d 613, 615 (5th Cir. 2004).


Rivera only challenges the knowledge element of his conviction. When

drugs are discovered in a vehicle while the defendant exercises control over it,

and the drugs are hidden in a secret compartment, “guilty knowledge may not

be inferred solely from the defendant’s control of the vehicle.”


To possess a controlled substance with the intent to distribute, the defendant must

(1) knowingly (2) possess a controlled substance (3) with the intent to distribute that
substance. See United States v. Garcia-Flores, 246 F.3d 451, 454 (5th Cir. 2001).


Case: 09-41082 Document: 00511631987 Page: 11 Date Filed: 10/13/2011

No. 09-41082

Gonzalez-Rodriguez, 621 F.3d at 361. There “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.” United States v. Resio-Trejo, 45 F.3d 907, 911 (5th Cir. 1995)

(quotation marks and citation omitted). Therefore, “[i]n secret compartment

cases, this Court requires additional circumstantial evidence that is suspicious

in nature and demonstrates guilty knowledge.” Gonzalez-Rodriguez, 621 F.3d

at 361 (finding sufficient evidence in a secret compartment case where 312

pounds of methamphetamine were concealed in the back of a load of grapefruits

in a freightliner; there was a suspicious time gap in travel between the loading

and delivery points of the freighter; there was evidence the log book had been

falsified; and there was a heavier lock than that typical for such a trailer, to

which the driver had the key). In the past, we have recognized the following

types of behavior as circumstantial evidence of guilty knowledge: “(1)

nervousness; (2) absence of nervousness, i.e., a cool and calm demeanor; (3)

failure to make eye contact; (4) refusal or reluctance to answer questions; (5) lack

of surprise when contraband is discovered; (6) inconsistent statements; (7)

implausible explanations; (8) possession of large amounts of cash; and (9)

obvious or remarkable alterations to the vehicle, especially when the defendant

had been in possession of the vehicle for a substantial period of time.” United

States v. Reyna, 148 F.3d 540, 544 (5th Cir. 1998) (citations omitted) (reversing

conviction for lack of sufficiency of circumstantial evidence of knowledge on a

finding that defendant’s composure, $700 in cash, and slightly oversized tire

“permitted conclusions of both guilt and innocence that are essentially in

balance,” resulting in reasonable doubt for a rational juror).

The government relies on the following circumstantial evidence of Rivera’s

guilty knowledge: (1) Rivera’s inconsistent or implausible statements regarding

his acquaintance with Vincente Flores, his activities the day before the offense,


Case: 09-41082 Document: 00511631987 Page: 12 Date Filed: 10/13/2011

No. 09-41082

and his purchase of the Yukon; (2) his demeanor at the checkpoint and during

police questioning; and (3) the high value of the methamphetamine in the


a. Inconsistent statements to customs officials

This court has held that “[p]erhaps the strongest evidence of a criminal

defendant’s guilty knowledge is inconsistent statements to federal officials,”

because “a factfinder could reasonably conclude that they mask an underlying

consciousness of guilt.” United States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th

Cir. 1990) (finding that nervousness, inconsistent stories, and implausible

explanation of how defendant acquired the truck constituted sufficient

circumstantial evidence of knowledge).

As detailed supra, the agents testified that Rivera changed his story

regarding his knowledge of Vicente Flores. They also testified that Rivera gave

inconsistent statements regarding his activity in the period leading up to his

stop at the Sarita checkpoint on the early morning of September 5. Officer

Bussey testified that Rivera told him that on Saturday, September 4, at 10:00

a.m. he drove to Mexico in his Plymouth Breeze and returned around 10:30 p.m.

At trial, however, Rivera testified that he spent most of the day in McAllen,

Texas with Sonja, where they eventually bought her a car. He also testified that

he drove the Yukon to an auto repair store in Brownsville between 5:00 and 6:00

p.m. on September 4, but a lane check of the Yukon reflected that it entered the


United States from Mexico at 6:59 p.m. Officer Bussey testified that Rivera had

stated that Soto had accompanied him so that Soto could visit his sister in

Houston. Soto, on the other hand, testified that Rivera had asked him to come

along to help haul cars, and that he would visit his sister, “if there was an

opportunity.” Rivera also testified that he had invited Soto to help haul cars.


Officer Bussey admitted, however, that the license plate scanner at the lane check

does not identify either the type of vehicle or the driver.


Case: 09-41082 Document: 00511631987 Page: 13 Date Filed: 10/13/2011

No. 09-41082

Finally, Rivera’s statements regarding his purchase of the Yukon were

somewhat inconsistent. Agent Solis testified that Rivera said that he purchased

the Yukon in Dallas, but he did not remember the name or address of the car lot

or dealership. When Agent Solis told Rivera that the DEA would subpoena the

seller of the vehicle to identify the purchaser, Rivera changed his story, stating

that Vicente had purchased the vehicle in Dallas and had brought it to Rivera

in Brownsville. Officer Bussey testified that Rivera told him that he purchased

the Yukon after he saw Vicente driving it. Rivera testified that the Yukon had

been purchased in Dallas and brought to Brownsville, and he denied that he had

ever stated otherwise. Rivera argues that all three times he merely meant to

explain that the car was originally from Dallas. In addition, a certified copy of

the Yukon’s title history identified the Yukon’s owner as Rivera with a

Brownsville address, and the previous owner as Exchange Auto Sales in

Garland, Texas. Officer Bussey testified that Exchange Auto Sales had closed

down more than a year before Rivera purchased the vehicle, and a former

Exchange Auto Sales mechanic testified that he did not sell a 1998 white Yukon.

Rivera’s testimony at trial contradicted that of the agents and officers.

The jury was under no obligation to believe Rivera and it was entitled to credit

the agents’ testimony, even without a recording of the post-arrest statements.

See United States v. Morin, 627 F.3d 985, 999 (5th Cir. 2010) (“Although no

recording was made of the initial DEA interview, and Morin contends that there

are no inconsistencies between what he told the agents originally and his

testimony at trial, the jury was entitled to credit the DEA agents’ testimony and

reject Morin’s testimony.”).

b. High value of drugs

Also indicative of Rivera’s guilt is the fact that he was transporting fifty-

four pounds of methamphetamine worth approximately $1.7 million. A jury

could reasonably infer that Rivera “would not have been entrusted with such a


Case: 09-41082 Document: 00511631987 Page: 14 Date Filed: 10/13/2011

No. 09-41082

large amount and high value of methamphetamine unless he knew he was part

of the drug trafficking scheme.” Gonzalez-Rodriguez, 621 F.3d at 362; see United

States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003) (finding jury could

reasonably infer knowledge from presence of drugs worth $300,000). Rivera

contends that this argument is undermined by the fact that the prints on the

wrapping of the methamphetamine were not his. However, the jury could have

reasonably believed that another party loaded the methamphetamine packets

into the Yukon, and Rivera then drove the truck.

c. Demeanor

Rivera’s body language at the checkpoint and during police questioning

also offers circumstantial evidence of guilty knowledge. Agent Martinez testified

that Rivera appeared nervous because he maintained a “death grip” on the

steering wheel, his leg was continuously moving, and he would not make eye

contact with the agents. See United States v. Gutierrez-Farias, 294 F.3d 657,

660 (5th Cir. 2002) (finding rational jury could have inferred guilty knowledge

from the fact that “one of the agents at the checkpoint testified that Gutierrez

appeared nervous, even before he was directed to the secondary inspection

area”). Other circumstantial evidence of guilty knowledge came from the

testimony of Agent Solis and Officers Bussey and Pacheco that Rivera did not

look at the agents when questioned, hesitated in his answers, and kept his arms

either crossed or in his pockets. See United States v. Richardson, 848 F.2d 509,

513 (5th Cir. 1988) (defendant’s “nervousness when going through the fixed

checkpoint . . . [was] suggestive of guilty knowledge”). In contrast, the agents

found Soto trustworthy because he was forthcoming in his responses to questions

and looked them in they eyes


Rivera testified that he was not nervous and denied that he had avoided

eye contact with the agents and officers. He also testified that when he was

being interrogated by the DEA, Agent Solis came into the room and began


Case: 09-41082 Document: 00511631987 Page: 15 Date Filed: 10/13/2011

No. 09-41082

cursing and yelling at him, which Agent Solis and Officer Bussey denied. Soto

testified that Mr. Rivera appeared calm and normal, although “serious” when he

was told about the drugs in the vehicle. Again, it was the jury’s prerogative to

credit the agents’ testimony, and to disbelieve Rivera and Soto.

Viewed in the light most favorable to the verdict, Rivera’s inconsistent

statements and suspicious demeanor, combined with the high value of the

methamphetamine, are sufficient to indicate guilty knowledge. Therefore, the

government presented adequate circumstantial evidence for a reasonable jury

to find Rivera guilty of possession of the methamphetamine with intent to

distribute it.

3. Prosecutor’s Misstatement of Evidence

Rivera argues that the district court abused its discretion by denying his

motion for a new trial based on a misstatement of facts outside of the record

made by the prosecutor during her closing argument. The government responds

that the factual error in the prosecutor’s closing argument did not affect

substantial rights.

This Court reviews the district court’s denial of a motion for new trial for

abuse of discretion. Villarreal, 324 F.3d 319, 325 (5th Cir. 2003). In reviewing

the denial of a motion for new trial, this Court does “not revisit evidence,

reevaluate witness credibility, or attempt to reconcile seemingly contradictory

evidence.” United States v. Tarango, 396 F.3d 666, 672 (5th Cir. 2005).

A district court may grant a defendant’s motion for new trial “if the

interest of justice so requires.” Fed. R. Crim. P. 33(a). “The remedy of a new

trial is rarely used; it is warranted ‘only where there would be a miscarriage of

justice’ or ‘where the evidence preponderates heavily against the verdict.’”

United States v. O’Keefe, 128 F.3d 885, 898 (5th Cir. 1997) (quoting United States

v. Andrade, 94 F.3d 9, 14 (1st Cir. 1996). A court will grant a new trial “only

upon demonstration of adverse effects on substantial rights of a defendant.”


Case: 09-41082 Document: 00511631987 Page: 16 Date Filed: 10/13/2011

No. 09-41082

United States v. Wall, 389 F.3d 457, 467 (5th Cir. 2004). See also United States

v. Azubike, 504 F.3d 30 (1st Cir. 2007) (vacating conviction and sentence and

remanding where prosecutorial misstatements occurred twice and strongly

emphasized incorrect evidence, the misstatements were deliberate, and the

defense objected). “In determining whether the prosecutor’s remarks affected a

defendant’s substantial rights, the trial court should consider (1) the magnitude

of the prejudicial effect of the statements; (2) the efficacy of any cautionary

instructions; and (3) the strength of the evidence of defendant’s guilt.” Wall, 389

F.3d at 474.

At issue here is the effect of an erroneous statement regarding the Yukon’s

registration made by the prosecutor in her closing argument. Defense counsel

at both the trial and appellate levels concede that there was no prosecutorial

misconduct and that the prosecutor’s misrepresentation was made in good faith.

During closing, the prosecutor attacked Rivera’s credibility, asserting that he

told different stories to different agents regarding his purchase of the Yukon and

his activities on the day before his arrest. She also stated: “This is a very

interesting set of paperwork . . . You heard the Defendant testify that he re-

registered [the Yukon] and got another license plate and you’re going to see

where that was done. And it wasn’t Brownsville, Texas.” This statement

referred to a receipt from Rivera’s re-registration to obtain new license plates for

the Yukon, which the government had entered into evidence. This receipt

contained the following language on the second line: “REG CLASS 25 $52.80

DALLAS CNTY,” and on the eighth line: “LAST ACTIVITY 08/23/2004 REPL


OFC: 031 AR.”


The prosecutor had also cross-examined Rivera’s testimony about changing the license


PROSECUTOR: Well, did you personally go and buy the new license plate?
PROSECUTOR: And where did you go?


Case: 09-41082 Document: 00511631987 Page: 17 Date Filed: 10/13/2011

No. 09-41082

On its second day of deliberation, the jury sent the district court the

following note: “The Title and Vehicle Registration (exhibit 2 pg 2) states on

second line: DALLAS CNTY. Could he have picked up the plates in Brownsville

with it reading Dallas County?” The district court responded that this was a fact

question to be answered by the jury, not the court. After the guilty verdict,

Rivera’s counsel confirmed with the Texas Department of Transportation that

code “OFC: 031” on the receipt identified the office location of the Yukon’s re-

registration as Brownsville. Defense counsel therefore moved for new trial,

based on the prosecutor incorrectly stating that the evidence showed Rivera had

not re-registered the Yukon in Brownsville. The district court held three

hearings on the motion, and in a written order denied Rivera’s motion,

explaining that the other evidence of Rivera’s guilt, including other inconsistent

statements, “demonstrates to the Court that a miscarriage of justice has not


We find that the district court did not abuse its discretion in ruling that

the prosecutor’s misstatement did not affect Rivera’s substantial rights.

Undoubtedly, Rivera’s credibility was a key issue in this case because one of the

main pieces of circumstantial evidence of his guilt was the agents’ testimony

that Rivera had changed his story. However, it was within the district court’s

discretion to determine that this one misstatement of fact regarding the location

MR. RIVERA: To the court.
MR. RIVERA: In Brownsville.
. . .
PROSECUTOR: So, if there’s a receipt in the title history where this
was bought out of Dallas County . . .
MR. RIVERA: What, the truck?
PROSECUTOR: For the truck, for the new license plate.
MR. RIVERA: I do not know. I just went to the court.
PROSECUTOR: Okay. That’s fine.


Case: 09-41082 Document: 00511631987 Page: 18 Date Filed: 10/13/2011

No. 09-41082

of Rivera’s re-registration, which could have undermined his credibility, did not

affect Rivera’s substantial rights.

First, regarding the prejudicial effect of the misstatement, the prosecutor

did not emphasize the place of re-registration in her closing argument, or in her

cross examination. Instead, the focus of the closing argument was on Rivera’s

inconsistent statements and allegedly implausible accounts regarding how and

where he initially purchased the Yukon and what he did the day before the

offense. The prosecutor did cross-examine Rivera about the re-registration, but

it was not key evidence. Furthermore, other evidence of Rivera’s inconsistent

statements was extensive. The district court therefore could conclude that one

additional example of a conflicting statement by Rivera did not have a strong

prejudicial effect on the jury.

The jury’s note asking whether the title registration document eliminated

the possibility that Rivera picked up the plates in Brownsville did not prove that

the misstatement had a strong prejudicial effect, either. While the face of the

exhibit states Dallas County, which reasonably could have led the jury to believe

that the re-registration occurred in Dallas, the jury note could also indicate that

they found the evidence unclear and did not consider it. The government

observes that the jury’s note explicitly refers to the government exhibit, rather

than the closing argument. Furthermore, as the government points out, this


note was just one of five sent by the jury.

Additionally, as detailed supra, there was other circumstantial evidence

of Rivera’s guilt, including his demeanor at the checkpoint and the amount of

drugs in the Yukon.


The government also contends that the court’s general instruction to the jury that

attorneys’ statements during closing argument do not constitute evidence undid the effect of
the erroneous statement. However, because the court gave its instruction before the closing
arguments, it could not serve to neutralize any prejudice caused by the misstatement. See
United States v. McPhee, 731 F.2d 1150, 1153 (5th Cir. 1984).


Case: 09-41082 Document: 00511631987 Page: 19 Date Filed: 10/13/2011

No. 09-41082

Rivera contends that his was a close case, as exhibited by the fact that the

jury deliberated for two days, and that the district court stated at the sentencing

that “the jury may have convicted an innocent man.” However, a two-day

deliberation is not necessarily indicative of the weight of the evidence against

Rivera, as many factors contribute to the length of a jury’s deliberations. And,

if the district judge had truly thought that Rivera was innocent, then he would

not have rejected his motion for new trial. In this case, the judge’s actions speak

louder than his words.

The prosecutor’s remark here was isolated and not emphasized, was made

in good faith, and Rivera did not object to it during the closing argument.

Moreover, the evidence of Rivera’s guilt was ample. We thus find that the

district court acted within its discretion in denying the motion for new trial

because there was no miscarriage of justice. See Wall, 389 F.3d at 474 (finding

that, “given the lack of bad faith on the part of the government, and given the

considerable evidence of Wall’s guilt, Wall failed to demonstrate that the


prosecutor’s remarks amounted to a miscarriage of justice”).

4. Reasonableness of Sentence

Finally, Rivera argues that his 235-month sentence should be vacated and

remanded for reconsideration because it was imposed before the Supreme

Court’s decisions in Gall and Kimbrough, and it is greater than necessary to

effectuate the purposes of sentencing under 18 U.S.C. § 3553(a), making it

unreasonable. The government responds that a summary remand is

unnecessary because there is no indication that the district court was


United States v. Earle, 375 F.3d 1159 (D.C. Cir. 2004) and United States v. Watson,

171 F.3d 695 (D.C. Cir. 1999), cited by Rivera, are inapposite. The District of Columbia Circuit
reversed in those cases because the defendants were prejudiced by prosecutorial remarks that
knowingly misstated the evidence during closing argument. Here, there was little prejudice
to Rivera, and Rivera conceded that the prosecutor did not knowingly misstate the evidence.


Case: 09-41082 Document: 00511631987 Page: 20 Date Filed: 10/13/2011

No. 09-41082

constrained by overruled precedent, and the district court properly considered

the § 3553(a) factors.

Following United States v. Booker, 543 U.S. 220 (2005), sentences are

reviewed for reasonableness in light of the sentencing factors in 18 U.S.C.

§ 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th Cir. 2005). This

includes a review of both the substantive and procedural reasonableness of the

sentence. United States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009).

Appellate arguments that were not raised in the district court are reviewed

under the plain error standard of review. See United States v. Peltier, 505 F.3d


389, 391-92 (5th Cir. 2007). Under that standard, this court may correct the

sentence imposed only if “(1) there is error . . . ; (2) it is plain; and (3) it affects

substantial rights.” Id. at 392. In addition, the error must seriously affect “the

fairness, integrity or public reputation of judicial proceedings.” Id. (internal

quotation marks and citation omitted). An error that affects substantial rights

is one for which there is “‘a reasonable probability that, but for [the error

claimed], the result of the proceeding would have been different.’” United States

v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985)).

Here, in its PSR, the Probation Office calculated Rivera’s base offense level

as 38 because the offense involved a net weight of 11.02 kilograms of

methamphetamine (actual). See U.S.S.G. § 2D1.1(c)(1). Since Rivera had no

prior criminal history, he fell into the lowest criminal history category of I. The

advisory guideline range was 235 to 293 months, the statutory minimum was 10

years, and the statutory maximum was life. See 21 U.S.C. § 841(b)(1)(A). Rivera

filed no objections to the Probation Office’s calculation of the guideline range,


Rivera has “preserve[d] for possible further review his position that his substantive

unreasonableness claim should not be subject to plain-error review,” based on other circuits’
distinct positions on this issue.


Case: 09-41082 Document: 00511631987 Page: 21 Date Filed: 10/13/2011

No. 09-41082

but at the sentencing hearing, his counsel argued that the PSR-recommended

sentence was greater than necessary to meet the goals of sentencing, given

Rivera’s stable employment, family history, and the facts of the offense. The

district court disagreed, finding “the seriousness of the offense to be the

predominant factor in sentencing,” and sentenced Rivera to 235 months’

imprisonment and a five-year term of supervised release.

We find unpersuasive Rivera’s argument that the sentence was

unreasonable in light of the Supreme Court’s opinions in Gall v. United States,

552 U.S. 38 (2007) (holding district courts are free to vary from the Guidelines

based on factors for which the Guidelines already account), and Kimbrough v.

United States, 552 U.S. 85 (2007) (holding sentencing courts have the discretion

to impose a non-Guideline sentence based on the courts’ disagreement with

Congressional and Sentencing Commission policy). As Rivera did not preserve

this issue for appeal, we review it for plain error. See United States v.

Rodriguez-Rodriguez, 530 F.3d 381, 387-88 (5th Cir. 2008). Rivera asserts that

this Court’s jurisprudence prior to Gall and Kimbrough restricted the district

court’s sentencing in a manner incompatible with those cases. As such, he

argues that this Court should vacate the sentence and remand to the district

court for reconsideration in light of Gall and Kimbrough.

This Court has rejected the same argument on numerous occasions. See,

e.g., Rodriguez-Rodriguez, 530 F.3d at 388-89; United States v.

Cisneros-Gutierrez, 517 F.3d 751, 766 (5th Cir. 2008). Although this Court’s

post-Booker precedent was arguably inconsistent with Gall and Kimbrough,

there is no requirement that we summarily remand a sentence merely because

it was imposed prior to those decisions. “[N]othing in the record indicates that

the district court in making its sentencing decision here felt in any way limited

in the alternatives it desired to consider by this court’s sentencing jurisprudence,

or in any way disagreed with the guidelines or felt that a sentence within the


Case: 09-41082 Document: 00511631987 Page: 22 Date Filed: 10/13/2011

No. 09-41082

guideline range was too harsh, or had any inclination, for any reason, to impose


a lesser sentence than it did.” Rodriguez-Rodriguez, 530 F.3d at 388. The

district court heard the arguments and concluded that a sentence within the

guidelines range satisfied the factors of § 3553(a). Rivera has not shown any

reversible plain error.

Rivera also contends that his sentence is unreasonable because 235

months is “greater than necessary” to effectuate the purposes of 18 U.S.C.

§ 3553(a). We first note that the district court is not required to exercise its

freedom to disagree with the guidelines, and thus Rivera’s argument fails that

“the sentence is unreasonable because . . . the district court did not consider that

it could vary from the Guidelines based upon policy disagreements with them.”

See Rodriguez-Rodriguez, 530 F.3d at 388.

Rivera also argues that the sentencing judge committed clear error

because he based the sentence entirely on the type and quantity of drugs at

issue, and failed to consider the other § 3553(a) factors, such as the fact that

Rivera had no criminal record, and had a consistent employment record and

stable family history. However, the sentencing record shows that the district

court considered all of the § 3553(a) factors and balanced them adequately. The

facts that Rivera contends the district court ignored were in fact detailed in the

PSR, which the court adopted. The sentencing judge also stated that he had

considered the various § 3553(a) factors, and there is no requirement that the

sentencing court give all of those factors equal weight. See United States v.

Hernandez, 633 F.3d 370, 375-376 (5th Cir. 2011) (“[A]lthough courts must

consider all the § 3553(a) factors, it is not possible, let alone required, that they

give incommensurable factors . . . equal weight. Rather, they must use their


The court’s comment that there was nothing it could do about the conviction of Rivera

obviously pertained to Rivera’s conviction, and not the sentence. The district court’s
commentary on the defendant’s credibility does not equal a statement that it would have gone
outside of the guidelines if it could.


Case: 09-41082 Document: 00511631987 Page: 23 Date Filed: 10/13/2011

No. 09-41082

judgment to weigh the relative importance of each factor in relation to each

particular defendant, with some factors being more important in some cases and

other factors more important in others.”). We therefore find that the district

court committed no clear error, and that the 235-month sentence Rivera received

was reasonable.



For the aforementioned reasons, the judgment of conviction and sentence

as to Rivera is in all things AFFIRMED.